Bowers v. Carolina Public Service Co.

• Decision Date: 15 November 1928
• Docket Number: 12523.
• Parties: BOWERS v. CAROLINA PUBLIC SERVICE CO. et al.
• Court: South Carolina Supreme Court

145 S.E. 790

148 S.C. 161

BOWERS v. CAROLINA PUBLIC SERVICE CO. et al.

No. 12523.

Supreme Court of South Carolina

November 15, 1928

Cothran J., dissenting.

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by Carrie May Bowers, as administratrix of the estate of Thomas H. Bowers, deceased, against the Carolina Public Service Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Douglas McKay and Herbert & Dial, all of Columbia, for appellants.

A. F Spigner, of Columbia, and Mendel L. Smith, of Camden, for respondent.

STABLER J.

On the morning of September 11, 1926, one Thomas Bowers, while riding in a wagon drawn by a mule along one of the streets of the city of Columbia, this street being also a public highway of the state, was run into and killed by a motortruck, the property of the defendant motor company, driven by one of its employees, the defendant Wyatt Beachum. This suit was brought by the administratrix of the estate of Bowers for damages on account of his death, for the benefit of his widow and children. The following specifications of negligence and willfulness are alleged in the complaint: "That the death of the said Thomas H. Bowers was due to and caused by the joint and concurrent negligence, wilfulness, and wantonness of the defendant in running its said automobile truck, which was then heavily loaded with ice, at a high and dangerous rate of speed, which speed was in excess of that allowed by the laws of the State of South Carolina, and by the ordinance of the City of Columbia, and by driving said truck in violation of the city ordinances of the City of Columbia and the laws of the State of South Carolina on the left hand side of the street and highway, while said motor truck was proceeding in an easterly direction without the said Wyatt Beachum, alias W. Beachum, keeping a proper watch or observation upon said highway and street, and without looking where he was going, and without said Wyatt Beachum having and keeping the truck under such control as would enable him to stop the same in time to avoid running into and killing said Thomas H. Bowers after he had seen him traveling in the street."

The defendant company denied that it was negligent or willful in any respect, and alleged that decedent's own negligence or willfulness in driving the wagon at nighttime upon the streets of the city of Columbia, without showing a light or lights as required by the city ordinance, contributed to his death as a proximate cause thereof.

The case was tried in the court of common pleas for Richland county by Judge Townsend and a jury, May 26, 1927. At the close of the testimony, the defendant company moved for a directed verdict both as to actual and punitive damages. The Court overruled the motion, and the jury found for the plaintiff in the sum of $15,000. The defendants now appeal to this court by five exceptions, which will be considered in order.

First, there is no merit in the contention that the trial judge committed error in the admission of testimony as to the corporate wealth of the defendant company, when same was not alleged. The plaintiff pleaded acts of joint and concurrent negligence, willfulness and wantonness on the part of the defendants, and such allegations support a cause of action for punitive as well as for actual damages. Baldwin v. Cable Co., 78 S.C. 419, 59 S.E. 67. The award of punitive damages is for the purpose of vindicating a private right which has been willfully invaded, and is intended in a measure as a punishment for the willfulness with which the right was violated. Hall v. Railroad Co., 28 S.C. 261, 5 S.E. 623. In order that the punishment might not be excessive on the one hand, or inadequate on the other, evidentiary knowledge of the financial ability of the wrongdoer to pay is essential. Calder v. Railway Co., 89 S.C. 287, 71 S.E. 841, Ann. Cas. 1913A, 894. An allegation by plaintiff of the defendant's financial condition is not a prerequisite to the admission of such evidence.

Consideration of the second and third exceptions requires some reference to the testimony. These exceptions impute error to the trial judge in refusing defendants' motion for a directed verdict, on the grounds (exception 2) that there was no evidence of negligence on the part of the defendants which was shown to be a proximate cause of the accident, and (exception 3) that, as a matter of law, plaintiff's intestate was guilty of such contributory negligence, in traveling without a light in violation of the city ordinance, as would defeat recovery.

With respect to the second exception, there was testimony tending to show that, at the time Bowers was killed, he was traveling in a wagon along one of the streets of the city of Columbia on his right-hand side of the street; that the defendant's truck was being driven in the opposite direction, going toward Eastover, on the left-hand side of the street, in the direction in which it was going; that, when it struck the wagon, Bowers was thrown to the pavement, and, although the defendants claimed to be going not more than 15 miles per hour, was dragged a distance of from 48 to 57 feet before the truck was stopped; that the lights on the truck were not strong, casting a light in front of it for a distance of about 30 feet; and that the driver was not keeping a proper lookout, as he was upon the wagon before he saw it. There was ample testimony to go to the jury on the question of the negligence and willfulness of the defendants in the operation of the truck in one or more of the particulars alleged in the complaint.

The third exception must also be overruled.

The ordinance in question is as follows: "Each and every vehicle using the public streets or highways of the city shall show at night a light, or lights, so placed as to be seen from front, rear and side. Such light or lights to be of sufficient illumination power to be visible at a distance of 200 feet, said light or lights shall show white in front, but may be colored on the side or rear. 'At night' shall mean the time during which the arc lights of the city are, or should be, lighted." It is clear that the ordinance was intended to impose a requirement made necessary, by reason of the darkness, for the safety of both vehicles. We do not think it was intended to mean that vehicles using the public streets or highways of the city should show a light, or lights, as long as the arc lights were operating, regardless of the state of daylight or darkness.

While it was admitted that, at the time of the accident, the arc lights had not been turned off, there was testimony tending to show that it was then daylight; that it was about 5:25 or 5:30 in the morning, and that the sun rose at 6:05; that at the time the collision occurred a person could read an ordinary newspaper without artificial light. On the other hand, there was evidence tending to show that it was dark, that the morning was cloudy, and that, in order to see distinctly and clearly, artificial light was necessary. Under the conflicting testimony on this point, the questions of contributory negligence and of proximate cause were matters entirely for the jury.

The following charge of the court is made the basis of the fourth exception: "Where a collision occurs between the vehicle of a person on the wrong side of a road or highway and that of a person coming in the opposite direction towards him, a presumption would arise that being on the wrong side was negligent, but his presence on that side may be explained or justified by evidence so as to rebut any presumption of negligence, and where there is any testimony or evidence bearing on the matter, it should be decided in accordance with the greater weight of the evidence. Whether or not the person on the wrong side of the road was or was not negligent, depends upon all the facts and circumstances of the situation at that particular time, and the reason he may have had for being there. Being on the right side of the road does not exempt a person from the obligation to use ordinary care for his own protection while driving there."

It is contended that "his Honor was in error in charging that any presumption arises in such case." This contention is without merit. The charge as a whole was substantially in accord with the principles laid down in Simms v. Eleazer, 116 S.C. 41, 106 S.E. 854, 24 A. L. R. 1293.

When the court had about concluded his charge to the jury, the following took place:

"Mr. Herbert: If your Honor please, I would like to have your Honor to construe that part of the ordinance which says what is 'at night'-which construes nighttime. In other words, the ordinance does not leave it to the discretion of the jury as to when it is nighttime and when it isn't. It says, 'those lights shall be burning during the time the arc lights of the city are burning.'"

"The Court: The ordinance requires the lights to be on the wagon at the same time the arc lights of the city are on and a failure to have the light on the wagon during such period would be negligence but it would be for the jury to say whether such negligence contributed to the collision depending on how much daylight then existed; and that should depend upon the stage or state of the daylight. It would be for the jury to determine from the evidence if the lights of the city were on-the arc lights. If there were no lights on the wagon when the arc lights of the city were on that would be negligence under the ordinance, but whether the absence of the lights on the wagon was the proximate cause of the collision would depend upon whether there was enough daylight there to enable the driver of the motor truck to clearly and distinctly see the wagon,

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