Brown v. Hill

• Decision Date: 11 August 1955
• Docket Number: No. E-32286,A,No. 17054,E-32286,17054
• Citation: 88 S.E.2d 838,228 S.C. 34
• Court: South Carolina Supreme Court
• Parties: Dorothy BROWN, Respondent, v. Frances HILL and One 1948 Pontiac, 1952 S. C. Licenseppellants.

Page 838

88 S.E.2d 838

228 S.C. 34

Dorothy BROWN, Respondent, v. Frances HILL and One 1948 Pontiac, 1952 S. C. License No E-32286, Appellants.

No. 17054.

Supreme Court of South Carolina.

Aug. 11, 1955.

Leatherwood, Walker, Todd & Mann, Greenville, Harold Major, Anderson, for appellants.

Richard J. Foster, Sol E. Abrams, Greenville, for respondent.

LEGGE, Justice.

Respondent brought this action to recover damages for personal injuries resulting from alleged heedlessness and recklessness of appellant, her brother's wife, in the operation of appellant's automobile in which respondent was riding as a guest. On the date of the accident, September 26, 1952, both parties resided in Anderson, South Carolina; and on that evening, about 9:00 p. m., respondent, having accepted appellant's invitation to accompany her to Greenville, South Carolina, was sitting on the front seat of the car, a 1948 Pontiac convertible, which appellant was driving. On the rear seat were appellant's son and daughter, aged thirteen and fourteen respectively, and respondent's four-year-old daughter. The weather was clear and the highway dry. Traveling northward on S. C. Highway No. 81, about three miles from Anderson, the car left the pavement, proceeded for some distance on the right-hand shoulder of the road and on the side of the 'fill', struck a tree, and, proceeding further, turned over and came to rest upside down, headed in the direction from which it had come. The car was completely demolished, and respondent sustained a compound fracture of the right femur, appellant three broken ribs, and appellant's daughter a broken arm. Appellant's son and respondent's daughter escaped serious injury. There were no eyewitnesses to the accident other than the occupants of the car.

Corporal Dubose of the State Highway Patrol, who arrived at the scene shortly after the accident, testified that, northbound, the highway at this point curves very sharply to the left; that its paved 'black-top' is about twenty feet in width and is flanked on either side by a six-foot grass shoulder; and that it is on a sloping 'fill' about three or four feet deep. Tire marks indicated that one or both of the right wheels of appellant's automobile had left the pavement before entering the curve; and there was a 'pull mark' on the grass shoulder going around the curve for a distance of some twenty-five or thirty feet, after which the car had crossed a dirt side-road, had struck a tree about twelve feet off to the right of the grass shoulder, and, some sixty or seventy-five feet beyond the tree, had turned over, heading back toward Anderson.

George W. Brown, respondent's husband, testified that he visited the scene two days after the accident and, some three months later, at the request of counsel, revisited the place and stepped off the distance from the point where the car had left the road to the point where it had come to rest, and that it measured seventy-three steps, or about two hundred nineteen feet.

Respondent testified that she had been talking with appellant, and that as they approached the curve she was looking straight ahead and saw no light indicating the approach of any car from the direction of Greenville; that just before reaching the curve the car jumped and jolted as the right wheels went off the pavement and upon the shoulder, and about then she glanced at the speedometer, which indicated a speed of seventy miles an hour; that up to that moment she had paid no attention to the speed of the car; that she had frequently ridden with appellant and considered her a careful driver; and that she herself had never driven a car.

Appellant testified that just as she 'started to enter the curve' she was blinded by the lights of a car coming from the direction of Greenville; that two of the wheels of the approaching car were over on her side of the white center line of the road; that she applied her brakes and pulled to the right; and that she 'ran on the shoulder of the road and lost control of the car'; and that her speed when the car left the highway was approximately forty-five miles per hour. Her son testified that she had begun to turn to the left into the curve when he saw the bright lights of an approaching car. He had no idea as to the speed at which appellant was driving. Her daughter's testimony, also, was to the effect that as their car was entering the curve the bright lights of an approaching car shone in her face. This child's testimony as to the direction of the curve and as to the speed of their car was somewhat confused.

Section 46-801 of the 1952 Code, which governs this action, provides that 'no person transported by an owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such motor vehicle or its owner or operator for injury, death or loss in case of an accident unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others'. The purpose of this statute being to restrict liability to a guest to cases where injury has resulted from either intentional or reckless misconduct of the owner or operator, we have construed the words 'his heedlessness or his reckless disregard of the rights of others' as meaning "his heedless and his reckless disregard of the rights of others". Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30, 31.

The conflicting testimony to which we have referred, together with the physical facts testified to by Corporal Dubose without contradiction, was amply sufficient to carry to the jury the issue of whether the unfortunate accident was brought about by appellant's recklessness in approaching a dangerous curve without taking proper care, or in not having her car under control, or in operating it at a speed excessive in the circumstances. Peak v. Fripp, 195 S.C. 324, 11 S.E.2d 383. Appellant's Exception No. 1, charging error in the lower court's denial of her motions for nonsuit, direction of verdict, and judgment n. o. v., all of which were based upon the contention that there was no evidence of recklessness on her part, must, therefore, be overruled.

Exception No. 2 is as follows:

'The court erred in failing to grant appellant's motion for a new trial on the grounds stated in such motion, it being submitted:

'(a) That it was error to refuse the requests to charge by appellant numbered 6, 8 and 9, as expressly and fully set forth in the motion by appellant.

'(b) That the charge by the court to the jury in regard to the mortality table was erroneous as the court failed to instruct the jury as to how the table could be applied to the plaintiff's case and there was no testimony to support this charge as made.

'(c) That the verdict of the jury was contrary to the evidence and the law.'

This exception does not comply with the requirements of Rule 4, § 6, of this court, and might for that reason be disregarded. Holden v. Cantrell, 100 S.C. 265, 84 S.E. 826; Green v. McDaniel, 168 S.C. 533, 168 S.E. 197. We have considered it, however, and find it without merit.

Appellant's sixth request to charge reads as follows:

'I charge you that whether speed of a motor vehicle constitutes reckless disregard of the safety of others depends upon whether the speed was so great as to show an entire absence of care for the safety of the guest, and was so great as to exhibit a conscious indifference to consequences'. This proposition was substantially covered in the general charge, which included correct definition of recklessness and instruction as to the statutory requirements concerning speed and as to the legal effect of their violation. In addition, the trial judge instructed the jury, at appellant's...