Bunton v. South Carolina State Highway Dept.

• Citation: 196 S.E. 188,186 S.C. 463
• Decision Date: 07 March 1938
• Docket Number: 14631.
• Parties: BUNTON v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT (two cases).
• Court: South Carolina Supreme Court

196 S.E. 188

186 S.C. 463

BUNTON v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT (two cases).

No. 14631.

Supreme Court of South Carolina

March 7, 1938

Appeal from Common Pleas Circuit Court of Charleston County; J Henry Johnson, Judge.

Separate actions by Mrs. Christina Bunton and Miss Christina Bunton against the South Carolina State Highway Department for injuries sustained in an automobile accident allegedly caused by defective highway. From judgments for the plaintiffs, defendant appeals.

Reversed and remanded, with instructions.

John M Daniel, Atty. Gen., J. Ivey Humphrey and M. J. Hough, Asst Attys. Gen., and Nathans & Sinkler, of Charleston, for appellant.

J. C. Long, of Charleston, for respondent.

STABLER Chief Justice.

These two cases, the issues involved being identical, were tried together in the court below, and so argued on appeal here. In both actions the plaintiffs sought to recover damages for injuries sustained as a result of an automobile accident which occurred on June 11, 1935, some four miles southwest of Charleston on state highway No. 17 leading to Savannah. Originally, the concrete part of this road was 18 feet in width; but it had been widened, for several miles from Charleston to the point of the accident, by the addition of a 5-foot strip of concrete paving on each side thereof. About noon of the date mentioned, the plaintiff Mrs. Christina Bunton left Charleston on this highway for Savannah, in a Ford automobile driven by her. She was accompanied by her daughter, Miss Christina Bunton, and three other women. On her approach to the end of the widened paving, Mrs. Bunton, who apparently was driving to the extreme right, attempted to shift or steer the automobile to the left onto and entirely upon the original 18-foot paved road, which continued from that point; but, in her effort to do this, one of the right wheels of the car left the concrete surface and hit a hole or rut adjacent to the northern side of the 18-foot pavement; that is, on the right-hand side in the direction in which the car was being driven. When the wheel left the concrete, the driver, according to her own testimony, lost control of the Ford. It zigzagged to the left across the highway, hitting the display sign of a filling station a little beyond the left of the southern shoulder of the road; it then started back in the direction of the pavement, crashed into a telegraph pole and turned over, thus coming to a full stop about 185 feet from the hole or rut.

The plaintiffs alleged that the rut or hole in question constituted a defect in the highway, and that the defendant was negligent and careless in allowing it to be and to remain there. Also, in "failing and omitting to have maintained and kept a proper inspection of its highway," and in failing "to have properly constructed the said highway" at the place of the accident.

The defendant, while admitting the existence of a slight rut at the end of the widened portion of the concrete, maintained that this did not constitute a defect in the highway; denied all allegations of negligence and carelessness on its part, and alleged that the injuries sustained, if any, were due to the plaintiff's own negligence and the negligence of the operator of the car, the occupants thereof being engaged at the time in a common enterprise; that the highway was in suitable condition to meet the needs of a person exercising due care; and that the accident occurred when the driver lost control of the car, which was due either to her own negligence or to the defective condition of the automobile itself.

At proper stages of the trial, the defendant moved for nonsuits and for directed verdicts. The motions were refused, and the jury found for each plaintiff the total amount asked for by her; to wit, in the action brought by Mrs. Bunton, $300, and in the suit by Miss Bunton, $2,500. In the last-named case, the presiding judge held that the verdict was highly excessive, and granted the defendant's motion for a new trial unless the plaintiff remitted on the record, which she did in the time allowed, all in excess of the sum of $1,250.

Three questions are presented by the appeal: (1) Should the defendant be required to respond in damages for injuries sustained in an automobile accident, where the alleged defect in the highway is not in, but on the side of, the paved portion thereof? (2) Did the court commit error in refusing to direct a verdict for the defendant? (3) Was there error in the refusal of the trial judge to charge that a quotient verdict is illegal? These we will consider in the order named.

First. It seems, as suggested, that this direct question has not been passed upon heretofore by this court. The argument of appellant is that the central paved portion of the highway is that part of the right of way intended for vehicular traffic, and that its legitimate use by motor vehicles, under normal circumstances, means that such type of traffic should proceed on the concrete surface; that the sole duty imposed upon the State Highway Department is to keep those portions of the highway in reasonably safe condition and free from defects for the respective use of the various types of traffic for which they are designed; and that, in the case at bar, as the plaintiff, although no unusual circumstances existed, drove her automobile off the paved highway into the rut or hole adjacent thereto-the pavement at that point being 18 feet in width-the defendant, under the reasonable rule contended for, is not liable in damages for any injuries that she may have received thereby .

In Livingston v. State Highway Department, 178 S.C. 323, 183 S.E. 8, 10, the plaintiff, while traveling on foot, was injured by a defect in the road. One of the questions there had to do with the rights of pedestrians in and to the use of the highways. In its disposition of that issue, the court, speaking through Mr. Justice Fishburne, stated certain conclusions which we think are helpful as having a bearing, directly or indirectly, upon the question now before us. We quote: "The appellant contends, further, that it is not liable for injuries suffered by reason of defects in its highways or by reason of the negligent repair thereof, unless such injuries occur on the part of the highways maintained for travel (that is, the paved portion) or in such close proximity thereto as to be unavoidable to one using the traveled part; and that, consequently, defendant is not liable for injuries sustained on the right of way of its highways, nor on or near private paths or ways."

Again: "By grading and placing in condition for travel the unpaved shoulder portion of the highway, the appellant must be held to have impliedly invited travel by the public. The section of the Code under which this action was brought does not limit the right of the traveling public to the paved portion only of the highway."

Also: "The appellant contends that the traveling public, pedestrian and vehicular, should be confined to the use of the paved central strip or the paths running immediately alongside thereof. The adoption of this rule, certainly as to pedestrians, would be unjustified in the light of experience, and in view of present day traffic conditions upon our highways. There is an ever present danger to the foot traveler upon the pavement from all manner of motor vehicles, moving with every variety of speed. Pedestrians in the lawful use of state highways, especially at night, should not be restricted within such narrow limits unless the statute clearly requires such construction, and we find no provision therein which would warrant us in so holding. If they took counsel of wisdom, or had due regard for life and limb they would steer a reasonably safe course from the paving and from the traveled path which runs in such deadly proximity thereto."

And: "We do not say that the liability and duty of the appellant to keep its highways in a reasonably safe condition for travel, free from defects, and in reasonably good repair, extend to the uttermost width of its right of way. The law, however, does require the appellant to maintain in a reasonably safe condition for travel that portion of its roadbed which is set aside and maintained in such condition as to invite its use for travel by the public, whether paved or unpaved."

From a reading of the above quotations, it is seen that the defendant sought in the Livingston Case to have this court declare that the State Highway Department was not liable for injuries suffered by reason of a defect in a state highway, unless such defect occurred in the paved portion thereof or in such close proximity thereto as to be unavoidable to one using the traveled part. The court, while not making any direct holding as to vehicular traffic, refused to sanction such suggested rule as to pedestrians, saying that this class of travelers upon highways, if they took counsel of wisdom, "would steer a reasonably safe course from the paving and from the traveled path which runs in such deadly proximity thereto." On the whole question, however, it was held that the defendant is required to keep in reasonably safe condition for travel that portion of its roadbed, whether paved or unpaved, set apart and maintained for travel thereon by the public.

Upon consideration, we think the appellant is right in its contention that the paved portion of a highway, and not the shoulders thereof, is the lane of travel which motor vehicles are primarily intended to follow and to be operated upon; and this is especially true where the pavement is of sufficient width to easily accommodate the vehicular traffic moving upon it. It would be laying down too strict a rule, however, if not an unreasonably harsh one, to hold that the driver of a...