Childers v. Gas Lines, Inc., No. 18549

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WILLIAM L. RHODES; MOSS
• Citation: 248 S.C. 316,149 S.E.2d 761
• Parties: Charles W. CHILDERS, Respondent, v. GAS LINES, INC., Appellant.
• Decision Date: 15 August 1966
• Docket Number: No. 18549

Page 761

149 S.E.2d 761 248 S.C. 316 Charles W. CHILDERS, Respondent,
v.
GAS LINES, INC., Appellant. No. 18549. Supreme Court of South Carolina. Aug. 15, 1966.

[248 S.C. 318]

Page 762

Holcombe & Bomar, Spartanburg, for appellant.

[248 S.C. 319] Burts & Turner, Spartanburg, for respondent.

WILLIAM L. RHODES, Acting Justice:

The respondent sustained injuries when the motorcycle operated by him was overturned as the result of it having collided with debris from a traffic sign alleged to have been placed in his lane of traffic by the appellant. The injuries to the plaintiff were sustained at about 11:15 P.M. on the night of July 28th, 1964, at a point on Heywood Street, in the City of Spartanburg, where the appellant was then engaged in installing a gas line along the shoulder of the said street. Action having been instituted by the respondent, a jury trial was had resulting in a verdict in his favor. At the appropriate stage the appellant moved for judgment n.o.v. on the grounds (a) that no negligence had been proved against the appellant as having proximately contributed to the accident, and (b) that the only reasonable inference from the testimony was that the intervening, independent act of an unknown automobile, striking and tearing up appellant's traffic sign, proximately caused the accident. This appeal followed the overruling of the motion by the trial court.

[248 S.C. 320] Under the established rule the question of whether or not there was error in refusing motion for judgment n.o.v. requires the court to consider the testimony and the reasonable inferences to be drawn therefrom in the light most favorable to respondent. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. Gray v. Barnes, 244 S.C. 454, 137 S.E.2d 594, 596; Green v. Bolen, 237 S.C. 1, 115 S.E.2d 667; Matthews v. Porter, 239 S.C. 620, 124 S.E.2d 321. Not only

Page 763

should consideration of the facts be submitted to the jury when in dispute, but the jury must also pass on the questions of inferences to be drawn from such facts after they have been determined. Howle v. Woods, 231 S.C. 75, 97 S.E.2d 205, 209; Moorer v. Dowling, 216 S.C. 456, 58 S.E.2d 734.

It is, of course, elementary that in order for a plaintiff to recover damages there must be proof not only of damages but also proof of actionable negligence on the part of the defendant. It is undisputed that between the hours of 7:30 A.M. and 5:00 P.M. of the day in question, the work crew of the appellant had been digging a ditch and installing therein a two inch pipe along the shoulder of Heywood Street. The ditch being dug was three feet in depth and fourteen or sixteen inches in width, and followed a course about four feet from the eastern edge of the asphalt portion of Heywood Street. Heywood Street at this point is normally a two-laned road, traffic being authorized to proceed in both directions, and runs generally North and South. A ditch-digging machine was being used in the construction which threw dirt on the asphalt portion of Heywood Street with the result that during its operation one lane of traffic on said street had to be closed and one-way traffic only maintained. It is further undisputed that on July 28th a sign indicating 'one way traffic' was placed by the appellant's crew on the asphalt portion of the street, and left there until at least shortly before the work crew [248 S.C. 321] ceased work at 5:00 P.M. The foreman of appellant's work crew was emphatic in his testimony that this 'one way traffic' sign was moved from the asphalt portion of the street and placed well onto the shoulder of the street at the time the crew ceased work for the day. He further testified that two flambeaux were placed in front of the sign when it was moved to the dirt shoulder.

The testimony of Frank Arthur, a witness for the respondent, is to the effect that he first passed the site in question at approximately 10:00 P.M. and that the sign was erect and on the asphalt portion of the road, and that he narrowly missed colliding with it. This witness again passed the scene in question at about 11:00 o'clock P.M., and states that the sign had been broken up and part of it was lying in the road. The testimony of Mrs. Ophelia Millwood, who lives in a house very near the scene, is that she was getting in a taxi to go to work at about 10:30 P.M. when she heard, but did not see, a car strike the sign. The testimony of Randall Joe Millwood, the 14 year old son of Mrs. Ophelia Millwood, is belabored by both appellant and respondent and contradictory conclusions are drawn by each as to its effect. It is sufficient to say that, in our opinion, the...