Carma v. Swindler, H-53720

• Decision Date: 26 January 1956
• Docket Number: No. 17109,R,No. H-53720,H-53720,17109
• Citation: 91 S.E.2d 254,228 S.C. 550
• Parties: Katle CARMA, Appellant, v. William O. SWINDLER, and One 1952 Dodge Pickup Truck, bearing 1954 South Carolina Licenseespondent.
• Court: South Carolina Supreme Court

Page 254

91 S.E.2d 254

228 S.C. 550

Katle CARMA, Appellant, v. William O. SWINDLER, and One 1952 Dodge Pickup Truck bearing 1954 South Carolina License No. H-53720, Respondent.

No. 17109.

Supreme Court of South Carolina.

Jan. 26, 1956.

E. Ellison Walker, Columbia, for appellant.

Frank L. Taylor, Eugene F. Rogers, Columbia, for respondent.

LEGGE, Justice.

While walking across a paved highway after dark, appellant was struck by respondent's truck, and she brought this action to recover damages for resulting personal injury. She appeals from an order of nonsuit.

On the evening of October 30, 1953, about seven o'clock, appellant, a colored woman aged fifty-four years, was returning on a bus from Columbia to her home in or near the State Park Division of South Carolina State Hospital, which is located on the two-lane paved highway known as Farrow Road, about six miles out of the city. In company with her were her adopted daughter, Mary Ann, aged fourteen, Bertha Taylor and her infant son, Gracie Harrell and Rebecca Stevenson. They all lived at or near State Park, and all alighted from the bus at its usual stopping place, opposite the junction of a dirt road running along the outside of the fence enclosing the State Park property. Farrow Road in this vicinity is straight and level, and its pavement is twenty-one feet in width.

Bertha Taylor testified that one car passed on the highway before she got off the bus, and another as she was getting off; that after she and the others had alighted from the bus they waited until the bus had proceeded a short distance (which she estimated to be a little less that the length of the court room), and then started to cross the highway; that Gracie Harrell and Rebecca Stevenson and Mary Ann crossed the highway first and appellant and the witness, who was carrying her child in her arms, followed; that witness looked both ways before starting to cross, and saw no vehicle, nor any light approaching from either direction; and that when witness was not quite half-way across, appellant, who was slightly ahead of her and about three or four steps from the farther edge of the pavement, was hit by the truck, which witness then saw for the first time. She testified that appellant was thrown about fifteen feet, and into the ditch, and that after striking her the truck proceeded down the highway a distance of about the length of the court room, before coming to a stop. She had no idea of the speed of the truck, and was unable to say whether its lights were burning either before or after the accident.

Appellant testified that before she started to cross the highway she looked both ways and saw nothing; that she was 'just about across' when she was struck; that she did not see the truck at all, and heard no horn nor any sound of brakes being applied. She testified that the two cars that passed while she and the others were getting off the bus had their lights burning. She was knocked unconscious and did not regain consciousness until she was in the hospital.

Mary Ann Carma testified that after they had all alighted from the bus she looked both ways and saw the truck with its lights burning, 'about a block up the road' (which on cross-examination she estimated as a distance about equal to the length of the court room), and approaching rapidly; that she then walked across the highway and had just gotten on the dirt road when the truck struck appellant, who at that time lacked 'about two steps' of completing her crossing of the pavement. Although she testified under further questioning by her attorney that she actually saw the truck strike appellant, her earlier testimony on direct examination in that regard was as follows:

'Q. Did you have an opportunity to yell to your mother that the truck was there? A. No.

'Q. Why didn't you? A. Time I got off the pavement and turned around to see if she was coming behind me, the truck hit her, and when I seen her she was over in the ditch.'

She testified that she heard neither horn nor the sound of brakes being applied; and that after striking appellant the truck proceeded 'half a block' down the road before coming to a stop.

Appellant's husband, who did not witness the accident, testified that on the following day he examined the locus for skidmarks, but found none; that in the direction from which the truck had come there was, on the highway, about two hundred paces from the point of the accident, a sign indicating a speed limit of thirty-five miles per hour, and near it another sign reading 'Watch Out For Aged And Helpless'; and that, in addition to other lights along the front of the State Hospital property, there was one, which had been burning on the night of the accident, near the corner of the fence along which the dirt road runs, at a point some nineteen paces from the edge of the Farrow Road.

Appellant's only other witness was the physician who had attended her at the hospital, and whose testimony is not pertinent to the issue now before us.

At the conclusion of appellant's case, respondent moved for a nonsuit upon the ground that there had been no proof of negligence on his part, and upon the further ground that even if the evidence be viewed as tending to establish such negligence it was susceptible of no reasonable inference other than that appellant had been guilty of contributory negligence. The trial judge's remarks following the argument indicate that the motion was granted upon the latter ground.

In Spearman v. Couch, 218 S.C. 430, 63 S.E.2d 161, a pedestrian had been struck by a motor vehicle while attempting to cross a four-lane highway, in a thirty-five mile speed zone, at a point opposite its junction with a street, the accident occurring about seven o'clock on a misty December evening. Verdict was for the plaintiff, and on appeal one of the issues discussed was the applicability of Section 1616(28) of the 1942 Code, which provided that 'Every pedestrian crossing a highway, except where traffic control signals are provided, shall yield the right of way to all vehicles upon the highway.' This court declared that in the light of that statute, there being no traffic control signals at the intersection in question, the trial judge was in error in holding, in his order refusing defendant's motion for judgment n. o. v., that a pedestrian has an equal right with motor vehicles in crossing a street at an intersection, and is not required as a matter of law to yield the right-of-way to them. But this error was held to be harmless because it could not be said, from the evidence, that plaintiff was guilty of more than simple negligence, and there was testimony that the motor vehicle was being operated at a rate of speed as high as seventy miles per hour, thereby warranting the conclusion that the defendant was guilty of gross negligence, as to which plaintiff's contributory negligence would be no defense; and the judgment of the lower court was accordingly affirmed.

By the Act of June 7, 1949, XLVI Stat. at L. 466, Code 1952, § 46-201 et seq. the laws regulating traffic on highways and streets were comprehensively revised, and Section 1616 of the 1942 Code was, among others, expressly repealed. The following portions of the 1949 Act are of interest here:

Section 14(a), Code 1952, Section 46-251, defines "street' or 'highway" as 'The entire width between boundary lines of every way publicy maintained when any part thereof is open to the use of the public for purposes of vehicular travel'.

Section 14(c), Code 1952, Section 46-254, defines 'roadway' as 'that portion of a highway...