Cummings v. Tweed

• Decision Date: 22 July 1940
• Docket Number: 15131.
• Parties: CUMMINGS v. TWEED.
• Court: South Carolina Supreme Court

10 S.E.2d 322

195 S.C. 173

CUMMINGS v. TWEED.

No. 15131.

Supreme Court of South Carolina

July 22, 1940

[Copyrighted Material Omitted]

Raymon Schwartz, of Sumter, for appellant.

Shepard K. Nash and McLeod & Shore, all of Sumter, for respondent.

L. D LIDE, Acting Associate Justice.

L. B Cummings, the plaintiff above named, was in the employment of S. Finlay Tweed, the defendant above named, and his brother, for about 20 years; and at the time of the injury involved herein plaintiff was a sawyer at the mill operated by the defendant and his brother in Kershaw County. On Saturday afternoon, August 27, 1938, after work at the mill had been completed for the week, the plaintiff at the invitation of the defendant was a guest passenger in his automobile on their way from the sawmill to Sumter. Mr. Tweed was driving the car and Mr. Cummings sat beside him on the front seat. The automobile was a Ford V-8 coach, 1937 model. They were driving on a dirt road called the Pisgah-Dalzell Road which intersected with another dirt road called the Providence Springs-Bishopville Road, and the crossing is referred to in the evidence as Gaillard's Cross Roads. Mr. Tweed's car collided at this crossing with an automobile being driven by a colored man named Goodman who entered the intersection from the Providence Springs-Bishopville Road. The result of this collision was that Goodman was killed and Mr. Cummings sustained serious bodily injuries. The automobile driven by Goodman was an old Chevrolet car.

This action was commenced on October 29, 1938, and the complaint states a cause of action under the guest statute, alleging that the injuries sustained by the plaintiff were due to and caused by the heedlessness and recklessness of the defendant, and judgment was sought in the sum of $7,500. The answer denies all allegations of heedlessness and recklessness, and sets up, among other things, the contributory recklessness of the plaintiff, and that the alleged injury to plaintiff was due to the recklessness and negligence of Goodman. The case came on for trial before Judge Mann and a jury on January 9, 1940, resulting in a verdict for the plaintiff in the sum of $4,700. From the judgment entered thereon the cause comes to this Court upon an appeal by the defendant. There are eleven exceptions, imputing error to the trial Judge; in the refusal of a nonsuit and a new trial; in his charge to the jury; in permitting counsel by indirection and innuendo to prejudice the defendant by remarks and improper questions and arguments intimating that the defendant was protected by liability insurance; and in refusing a new trial because of the excessive amount of the verdict.

As above stated, this action is based on what is generally designated as the guest statute, incorporated in Section 5908, Code 1932, the pertinent portion of which is as follows: "No person transported by the 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 automobile, its owner or operator for injury, death or loss, in case of accident unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others."

This section was construed in the case of Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30, 32, and it was there held that the purpose of the statute was to limit liability to a guest to a case where his injury was either due to an intentional act on the part of the owner of the car, or to reckless misconduct on his part, and hence that the statute should be construed as if it read "heedless and his reckless disregard of the rights of others", instead of "heedlessness or his reckless disregard of the rights of others". In other words, the word or in that portion of the statute should be construed as and, for the reason that the word "heedlessness" was equivalent to negligence, and the obvious purpose of the statute was to impose liability only where there was something more than mere negligence. The Court says: "Heedless in this connection means careless; it does not add to the significance or the characterization or the force of the act or conduct done in reckless disregard of the rights of others by the owner or operator. Act or conduct in reckless disregard of the rights of others is improper or wrongful conduct, and constitutes wanton misconduct, evincing a reckless indifference to consequences to the life, or limb, or health, or reputation or property rights of another." Hence, as we have already indicated, this action is based upon the alleged reckless misconduct of the defendant, there being no charge that the accident in question was intentional on his part.

At the close of plaintiff's testimony, however, the defendant moved for a nonsuit on the ground that there was no evidence of recklessness on his part in the operation of the car. But the plaintiff testified that the defendant was driving his car at an excessively high rate of speed, that they were going at 60 miles an hour at a point about 500 yards from the crossing, and that at the time they entered the intersection the speed was still up in the "fifties", and that when they were in 250 to 300 yards of the crossing Goodman's car approaching on the other road to their right was plainly visible, and that he was then about 150 to 200 yards of the crossing, proceeding at a much slower gait. It was further testified by the plaintiff that Mr. Tweed did not slow up just before entering the crossing or sound his horn; and further that he did not apply his brakes, so far as the plaintiff knew. It is thus apparent that it was a question for the jury as to whether the injury sustained by the plaintiff was proximately caused by the defendant's reckless disregard of plaintiff's rights in the operation of his car at the time and place of the collision.

One of the allegations of recklessness specified in the complaint is the failure to keep a lookout, and as was held in the case of Spurlin v. Colprovia Products Co., 185 S.C. 449, 194 S.E. 332, if any testimony is introduced touching or supporting allegations as to defendant's failure to keep proper lookout or have proper control, it would ordinarily be a question for the jury whether such conduct constituted a reckless disregard of the rights of the passenger, within the meaning of the guest statute. And in the case at bar, in addition to the matter of lookout, the evidence in regard to excessive speed, etc., required the refusal of the motion for a nonsuit.

It should be stated here that the testimony by and on behalf of the defendant raises many serious issues of fact. For the defendant denies that he was driving at an excessive rate of speed, and states that he did not see Goodman's car because his vision was obstructed by an embankment and a corn field, but he does admit that he entered on the crossing without blowing his horn and that it was a "blind crossing" over which he had traveled almost daily for a year and a half. He says:

"Q. You didn't blow your horn? A. No.

"Q. If you had blown your horn do you think this darkey would have come into the road? A. He would have come in anyway.

"Q. How do you know? A. It was a blind crossing."

The defendant in his testimony explicitly denies all charges of recklessness on his part; but the conflicts in the evidence were of course for the jury.

Another ground of the motion for a nonsuit was that the evidence conclusively showed contributory recklessness on the part of the plaintiff himself, because although cognizant of the rate of speed and his imminent danger he made no protest whatever to the driver of the car, nor gave him any warning.

It is quite true that a guest himself is not relieved from the duty of exercising due care, and he may not abandon the exercise of his own faculties and entrust his safety absolutely to the driver; but on the other hand: "In the absence of any fact or circumstance indicating that the driver is incompetent or careless, an occupant of a vehicle is not required to anticipate negligence on the part of the driver. Thus, in the absence of any fact or circumstance indicating the contrary, he need not anticipate that the driver, who has exclusive control and management of the vehicle, will enter a sphere of danger, omit to exercise proper care to observe the approach of other vehicles, or fail to keep the speed of the vehicle within proper limits, or otherwise improperly increase the common risks of travel." 45 C.J. 1016, 1017.

We are of opinion that whether or not the plaintiff was guilty of contributory recklessness was an issue that could not be determined by the Court, but was for the jury, especially in view of plaintiff's testimony as follows: "He was driving around sixty miles an hour, but I wouldn't say he was driving that fast where the accident happened, but he had not taken up any, and I thought Mr. Tweed, after the other car got almost into the intersection of this road I looked up to say something to Mr. Tweed to remind him of this car coming, and when I did he was looking straight ahead, and about that time everything went black." And he had previously testified that he thought Mr. Tweed was going to stop.

These same grounds were included in the defendant's motion for a new trial, although there was no motion for a directed verdict, but we do not think it necessary to discuss the testimony in further detail to show that these motions were properly overruled.

The defendant also charges that the trial Judge erred in not granting a new trial on the ground that the testimony is susceptible of but one inference, and that is, that the plaintiff's injuries were due to the negligence and...