Butler v. Temples

• Decision Date: 25 July 1955
• Docket Number: No. 17039,17039
• Parties: George Herman BUTLER, Adm'r, Respondent, v. Patterson TEMPLES, Appellant.
• Court: South Carolina Supreme Court

Page 586

88 S.E.2d 586

227 S.C. 496

George Herman BUTLER, Adm'r, Respondent, v. Patterson TEMPLES, Appellant.

No. 17039.

Supreme Court of South Carolina.

July 25, 1955.

B. E. Nicholson, Edgefield, Butler B. Hare, Saluda, for appellant.

Griffith, Coleman & Griffith, Saluda, for respondent.

STUKES, Justice.

The appellant sent his eighteen-year-old son, Grady, in his (appellant's) automobile to the home of respondent on a Sunday afternoon to borrow some clothing from the wife of the latter for the use of appellant's wife who was about to enter a hospital. Grady drove the car into the front yard of the home, parked it facing the steps, at a slight angle, and the front of the car was about two feet from the steps. Respondent, his wife and their two small children, aged four and two years, were in the yard. Grady told them his mission and Mrs. Butler went into the house to look for the articles of clothing and was followed by Grady and her older child, leaving respondent, the father, with the two-year-old Betty Jo in the yard. When the others did not immediately return the respondent went into the house, leaving the little girl in the yard unattended.

Grady left the house with the clothing ahead of the others, got in the automobile and started and reversed it. Then he heard the warning shouts of a neighbor who was sitting on his porch across the road, about 150 feet away, and stopped the automobile, but not until it had been backed two or three feet and over the body of Betty Jo, inflicting injuries from which she died within a few hours.

The action was brought under Lord Campbell's Act for the benefit of respondent and his wife, who are the surviving parents of the deceased. Code of 1952, Sections 10-1951, 1952. The specifications of alleged negligence were: backing the automobile without observing the child at the rear of it; in failing to keep a proper lookout when the driver knew, or should have known, that the child was in the yard where he backed the automobile; in doing so before determining her whereabouts; in failing to give any warning signal before backing; and without first determining that the way was clear when he knew, or should have known, that the child was playing in the yard where the automobile was parked. The answer pleaded a general denial and the contributory negligence of respondent and his wife, the parents of the deceased, in leaving their child in the yard unattended in a place of known danger with the knowledge that Grady was on an emergency errand and would immediately drive the car out of the yard; and as to respondent individually, that he left the child unattended with the knowledge that Grady would soon back his car from the yard. The answer also pleaded accident.

The testimony of respondent's witnesses, including the neighbor who saw the tragedy from his nearby porch, established the facts which have been stated, and that the deceased child was playing in the sand about two feet behind the right rear wheel of the automobile, out of Grady's view as he entered it on the left and he started it without any signal and without any effort to discover the presence of the child, which he could have done by going to the rear of the automobile.

Grady's testimony for the defendant was quite susceptible of reasonable inference of his negligence. While he was in the house to get the clothing he saw the parents and the older child from which he should have known that Betty Jo had been left in the yard where he admittedly had observed her when he entered the house. He said that when he came out, quoting from his testimony, 'Well, I looked sort of out into the yard, going towards the car. I didn't see anyone. I got in the car and cranked it up and eased back and looked, but I didn't see anything. I don't know when I looked back, whether it was before I started off or not, but I looked back.' He said that as he started back he heard the neighbor's warning call, stopped after going two or three feet, and 'pulled back up'; and at that time respondent was still in the house. On cross-examination he admitted that he saw the entire family in the yard when he arrived; in the house he saw only the three members other than Betty Jo, whom he had last seen in the yard about ten feet from his automobile, and did not see her when he came out. Leaving the house, he stepped off the porch, caught hold of the door of the car and got in; he said that he could not have seen the child unless he had walked around the car. Of course he could, had he gone to the rear of it.

The trial resulted in verdict of $7,500. for respondent. Timely motions of appellant for nonsuit, directed verdict and judgment non obstante veredicto were overruled and this appeal followed. There is no contention of error in the admission of evidence or in the instructions to the jury. The exceptions raise, and appellant has argued, two questions: First, that the testimony was insufficient to submit the issue of negligence on the part of the driver of the automobile ; and, second, that it established contributory negligence, as a matter of law, on the part of the parents of the deceased, for whose benefit the action was brought.

Appellant cites for his contention that the driver's conduct is not reasonably susceptible of inference of negligence, the following decisions: White v. Edwards Chevrolet Co., Inc., 186 Va. 669, 43 S.E.2d 870; Pritchard v. Henry, Tex.Civ.App., 200 S.W.2d 651; Comer v. Travelers Ins. Co., 213 La. 176, 34 So.2d 511; Hahn v. Anderson, 123 Pa.Super. 442, 187 A. 450; Larson v. Loucks, 69 S.D. 60, 6 N.W.2d 436, and Williams v. Cohn, 201 Iowa 1121, 206 N.W. 823. To the contrary respondent cites: Eaton v. S. S. Pierce Co., 288 Mass. 323, 192 N.E. 831; Gorzeman v. Artz, 13 Cal.App.2d 660, 57 P.2d 550; Frasciello v. Baer, 304 Mass. 643, 24 N.E.2d 653; Callahan v. Disorda, 111 Vt. 331, 16 A.2d 179; Derry v. Grimes, 202 Ark. 20, 148 S.W.2d 676; King v. Cipriani, Ohio App., 32 N.E.2d 446; Dungan v. Brandenberg, 72 Ariz. 47, 230 P.2d 518; Lovel v. Squirt Bottling Co. of Waconia, 234 Minn. 333, 48 N.W.2d 525, and Miami Paper Co. v. Johnston, Fla. 58 So.2d 869.

The foregoing decisions of varying results are reconciliable in large measure upon the concept that the jury may reasonably find negligence where the driver knew, or in the exercise of due care should have known, of the presence of the child in a place of danger about the automobile. The following is from 44 A.L.R. 434:

'The tendency of the later cases would seem to indicate that the courts are requiring a higher degree of care on the part of the operators of automobiles towards children playing on or in proximity to their automobiles than was announced in the original annotation, particularly in those cases in which the driver had notice of the children's presence on or about the machine.'

It is generally held that one must be on the alert for unpredictable acts of children. 5 Am.Jur., Automobiles, Secs. 185, 186, 198, 199. Blashfield's Cyclopedia of Automobile Law and Practice, Sec. 1496. Annotation, 30 A.L.R.2d 5. In the last-cited it is said at page 12:

'The circumstances are important in this connection; and one of the circumstances being the fact that the driver knows or should know that children, whose characteristics are well known, are involved, it has been held in the great majority of cases that a great or high degree of care or caution is required of the driver.'

Moreover, it is well-established upon reason and authority that the backing of a motor vehicle is attendant with unusual danger to one who may be in its path and requires commensurate care on the part of the operator of the vehicle. 5 Am.Jur., Automobile, Secs. 328 et seq. Annotations, 67 A.L.R. 647 and 118 A.L.R. 242. Blashfield, Secs. 1101, 1102. Carroll v. Lumpkin, 146 S.C. 178, 143 S.E. 648. Benedict v. Marks Shows, 178 S.C. 169, 182 S.E. 299. Decisions are collected in 30 A.L.R.2d 102 under the heading 'Children near driver's parked vehicle; duty upon starting,' which are illustrative of application of both of the above rules, and they are similarly applicable to the instant facts.

As indicated in the above recital of the evidence, the jury were fully warranted in finding negligence on the part of the driver of the car here, which answers appellant's first question adversely to him.

Turning to the second question, appellant relies upon alleged contributory negligence of the parents, the beneficiaries of the recovery, which would have been a defense, if established, as shown by the following decisions which he cited: Sandel v. State, 115 S.C. 168, 104 S.E. 567, 13 A.L.R. 1268; Wilson v. Clarendon County, 139 S.C. 333, 138 S.E. 33; Cirosky v. Smathers, 128 S.C. 358, 122 S.E. 864; Crawford v. Simons-Mayrant Co., 141 S.C. 333, 139 S.E. 788, and Horne v. Atlantic Coast Line, 177 S.C. 461, 181 S.E. 642. The issue of contributory negligence of the parents was submitted to the jury in the trial of the case and their verdict negatives the existence of it. The contention therefore is that the court should have found contributory negligence of the parents as a matter of law. The child was, of course, of such age as to be incapable of negligence.

In overruling appellant's motions after verdict, the trial judge held that if it were conceded that there was evidence of negligence of the parents, it was for the jury to say whether such, if any, contributed as a proximate cause to the injury or whether it was a mere condition and remote in the chain of causation, for which he cited Bodie v. Charleston & W. C. Ry. Co., 61 S.C. 468, 39 S.E. 715; Key v. Charleston & W. C. R. Co., 144 S.C. 164, 142 S.E. 336; Leppard v. Southern R. Co., 174 S.C. 237, 177 S.E. 129; Seay v. Southern Railway--Carolina Division, 205 S.C. 162, 31 S.E.2d 133; Truett v. Atlantic Coast Line R. Co., 206 S.C. 144, 33 S.E.2d 396, and Nettles v. Southern Ry. Co., 211 S.C. 187, 44 S.E.2d 321.

We do not think that it is necessary to...