Brock v. Carolina Scenic Stages & Carolina Cas. Co. of Burlington

• Decision Date: 31 May 1951
• Docket Number: No. 16509,16509
• Court: South Carolina Supreme Court
• Parties: BROCK v. CAROLINA SCENIC STAGES & CAROLINA CAS. CO. OF BURLINGTON.

Page 468

65 S.E.2d 468

219 S.C. 360

BROCK v. CAROLINA SCENIC STAGES & CAROLINA CAS. CO. OF BURLINGTON.

No. 16509.

Supreme Court of South Carolina.

May 31, 1951.

Lyles & Lyles, Spartanburg, for appellant.

Odom, Bostick & Nolen, Sam R. Watt, all of Spartanburg, for respondent.

OXNER, Justice.

This action was brought against Carolina Scenic Stages and its insurer, Carolina Casualty Company of Burlington, North Carolina, to recover damages for the alleged wrongful death of Iris Shirley Brock, a girl twelve years of age, who died instantly as a result of injuries received in a collision between a Chevrolet truck and a bus owned and operated by the Carolina Scenic Stages. The case is here on appeal by the plaintiff from an order of nonsuit and an order refusing a motion for a new trial. The only question for determination is whether there is any testimony reasonably warranting an inference of actionable negligence in the operation of said bus.

The collision occurred about 8:30 A. M. on August 16, 1949, approximately six miles from the City of Spartanburg, at or near the apex of a twelve to fourteen per cent curve, on a surface treated highway between Boiling Springs and Valley Falls. The surface treated portion of the road was approximately 18 feet wide. There were dirt shoulders. The bus was traveling toward Valley Falls and Spartanburg and was going down a two per cent grade on the inside of the curve. The truck was traveling in the opposite direction. It was foggy and raining and the road was slick. Plaintiff's intestate was riding in the seat of the truck with her father who was also instantly killed as a result of the collision. They were the sole occupants of the truck. Apparently there were no other eyewitnesses except the driver of the bus and the passengers, if any, thereon. Plaintiff sought to establish her case by circumstantial evidence.

Pictures taken shortly after the accident show that the major point of impact was at the left front of each vehicle and indicated a head-on collision. It may be reasonably inferred that either the bus or the truck was being driven to the left of the center of the highway. Of course, it is possible that both were over the center line. The bus was 7 feet 10 inches wide, or approximately one foot less than half the traveled portion of the highway. The width of the truck was 76 1/2 inches. No tracks or skid marks were found on the pavement. The evidence does not disclose the exact point in the curve where the collision occurred. Assuming that the vehicles collided where the debris was found, the bus traveled after the collision approximately 54 feet on the pavement, then proceeded diagonally along the left shoulder a distance of 75 feet and came to rest against a cement culvert with both left wheels in the ditch on the truck's side of the road. The movement of the bus along the shoulder was clearly indicated by the tracks. An examination showed that its left front wheel was badly damaged, though not completely broken down, with the tire thereon deflated. The truck was found in front of the bus lying crosswise on its right side.

A witness who lived about three-tenths of a mile from the scene of the accident testified that while sitting on his front porch he saw the truck passing and waved to the father of the plaintiff's intestate, whom he knew. He said the truck was running from 20 to 25 miles an hour.

The following testimony was given by a nineteen year old boy whose home was located about 150 to 200 feet from the highway:

'Q. Do you recall the day of August 16, 1949? A. Yes, sir.

'Q. When this collision took place out there in front of your house? A. Yes, sir.

'Q. Did you see the Brock truck before it got to the--A. Yes, sir, I saw it about 75 feet before it got to where the bus stopped.

'Q. Let me see if I understand. You saw it about 75 feet before where it stopped--A. Where the wreck stopped it.

'Q. About 75 feet before the wreck happened. That would be about 75 feet towards Valley Falls from the culvert on that side of the road? A. Yes, sir.

'Q. You are estimating that? A. It is about 75 feet.

'Q. Where, James were you when you saw it? A. I had started in the house.

'Q. But where had you been or where were you going? A. I had come from the barn and started into the house.

* * *

* * *

'Q. I would like for you to estimate the speed of the truck when you saw it? A. He was doing about 25 miles an hour.

'Q. What side of the road was he on? A. On his right side.

'Q. On his right side. Now then, did you go down to the wreck afterward? A. Yes, sir, I went down after the wreck happened.'

The father of the above witness testified:

'Q. How did you happen to go to the scene of this wreck? A. I started to the barn when I heard the crash and ran back there.

'Q. What did you hear? A. I hear noise, escaping air, and then immediately following, a rumbling, crash sound.

'Q. Immediately on hearing that air noise that you spoke of, what did you do? A. I looked towards the road but couldn't see anything and ran down a few steps to my left and saw the bus and little truck about 10 feet before they come to a stop.

'Q. Where was the little truck in relation to the bus when you first saw it? A. In front, being pushed down the road by the bus.

'Q. What did you do then, Mr. Solesbee?

* * *

* * * 'A. I ran almost to the road and saw part of the people were apparently dead and ran back to the house and got the truck and went and called an ambulance.'

None of the witnesses saw the bus prior to the collision. Accordingly, there is no direct evidence of its speed or the portion of the highway on which it was traveling immediately preceding the accident. All the debris, with the exception of a brace from the bumper of the truck, was found on the truck's side of the road. An examination of the bus showed that its rear tires were slick and worn to the cord. There was some tread on the front tires, although one witness testified that these were 'reasonably slick'.

The foregoing constitutes a brief resume of plaintiff's testimony. The only evidence offered by the defendants consisted of certain photographs. They did not offer the driver of the bus or any other witness. (Of course, defendants' motion should have been for a directed verdict rather than for a non-suit. It will be regarded as a motion for a directed verdict, since plaintiff's counsel raise no question as to the character of the motion.)

We think the circumstances heretofore set out, when considered together, are sufficient, in the absence of any explanation by the defendants, to warrant an inference that the collision was caused by the bus being driven to the left of the center of the highway. Just before the collision the truck was seen traveling at a moderate rate of speed on the proper side of the road. All the debris, with the exception of one piece of metal, was on the truck's side of the highway. In going around the inside of this curve, there was a natural tendency for the bus, which was almost as wide as half the pavement, to veer to the left. After the collision the bus proceeded some distance along the left shoulder, pushing the truck, and finally came to rest in the ditch on the truck's side of the highway. It must be conceded that reliance on some of this evidence is beset with danger, as so many variables must be considered, and that none of the circumstances mentioned necessarily show that the bus was being operated to the left of the center of the highway at the time of the collision. Yet when taken together and unexplained, we think they rise above suspicion and conjecture and reasonably warrant an inference of actionable negligence.

In addition to the foregoing circumstances, the driver of the bus was not offered as a witness from which it may be reasonably inferred that his testimony, if presented, would have been unfavorable to the defendants. Robinson v. Duke Power Company, 213 S.C. 185, 48 S.E.2d 808, and cases therein cited. The record does not disclose any other surviving witness to the collision. The testimony is silent as to whether there were any passengers on the bus, although the trial Judge stated in his order refusing a new trial that there were passengers. But if so, we do not know what knowledge they had of the collision.

While the difficulty of proof does not relieve plaintiff of the burden of proof, yet in a situation like this, the Court should take a very liberal view of the testimony. It was so held in Herbert v. W. H. Smith Paper Corporation, 243 App.Div. 260, 276 N.Y.S. 820, 823, were the Court said: 'In their efforts to administer justice, the courts may not approve a rule, in the circumstances shown here, that will permit a defendant whose automobile concededly has injured another, to assume the attitude that he need not explain, if he can, the injury inflicted, merely because no witness was present at the instant of the collision and the victim is dead. It has long been recognized by the courts of this state that in circumstances such as these only slight evidence is required to shift to the defendant the burden of explanation.'

We do not think the views herein expressed impinge in any manner upon the decision of this Court in Leek v. New South Express Lines, 192 S.C. 527, 7 S.E.2d 459. In that case there were tracks clearly indicating that the truck operated by the defendant never crossed the center of the road. Each vehicle involved in the collision came to a stop on its right side of the road. A full explanation of the circumstances, disclosing the exercise of due care was given by the driver of the defendant's truck.

We intimate no opinion as to the propriety of a directed verdict in favor of the defendants after the Court has the benefit of the testimony of the driver of the bus or any other witnesses that may be offered by the defendants. Of course, it is impossible to anticipate the character of the testimony that may be offered on another...