Daniel v. Hazel, 18076

• Decision Date: 04 June 1963
• Docket Number: No. 18076,18076
• Citation: 131 S.E.2d 260,242 S.C. 443
• Court: South Carolina Supreme Court
• Parties: Earl W. DANIEL, Appellant, v. Charles E. HAZEL, Respondent.

Page 260

131 S.E.2d 260

242 S.C. 443

Earl W. DANIEL, Appellant, v. Charles E. HAZEL, Respondent.

No. 18076.

Supreme Court of South Carolina.

June 4, 1963.

Traxler & Turner, Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

BUSSEY, Justice.

In this action to recover damages resulting from an automobile accident, the jury returned a verdict in favor of the plaintiff for twenty-two dollars and fifty cents. From an order refusing to set aside the verdict and grant a new trial, the plaintiff appeals.

The accident occurred in the City of Greenville, on the morning of March 10, 1959. Both vehicles were proceeding along Anderson Street in the vicinity where said street approaches and interesects Pendleton Street, the plaintiff's vehicle being in front of the defendant's vehicle. Except for the fact that the front of defendant's automobile admittedly came in contact with the rear of plaintiff's automobile, there is great conflict in the evidence as to how the accident occurred, and the extent and nature of the collision.

Testimony in behalf of the plaintiff was to the effect that he stopped behind a truck, which had stopped for a stop sign at the intersection, and that after the truck moved into the intersection, he pulled on up to a white line at the entrance to the intersection and stopped again; that the defendant approached at a speed of about fifteen miles per hour and rammed into the rear of plaintiff's vehicle with great force and violence doing damage to plaintiff's automobile and rendering unto plaintiff severe and permanent personal injuries.

Evidence on behalf of the defendant was to the effect that there was no truck at the scene; that plaintiff stopped at the aforesaid white line, and that defendant stopped some three or four feet in back of plaintiff's automobile. Anderson Street approaching Pendleton Street is slightly downgrade and defendant testified that he was sitting with his foot on his brake when he saw plaintiff's car start to move into the intersection, upon which he removed his foot from his brake, but did not put it upon the accelerator, and almost simultaneously looked to the left to observe any approaching traffic on Pendleton Street, and that as he did so, his car started to roll forward. At this moment, according to the defense testimony, plaintiff's car, which had started to move out, stopped again, and defendant's wife who was riding with him said: 'Watch it.' Thereupon defendant put on his brakes and his car dipped down in front and tapped the right rear or tail light of plaintiff's automobile, which admittedly was broken and cost plaintiff seven dollars and fifty cents to repair. According to defendant's evidence, there was no other damage to either car, and no indication or complaint of any injury whatsoever to the plaintiff.

The defendant plead, inter alia, contributory negligence on the part of the plaintiff, and also that the accident was unavoidable on his part. At the conclusion of the testimony plaintiff moved for a directed verdict in his favor on the issue of liability, and the elimination of the defenses of contributory negligence and unavoidable accident from the consideration of the jury, which motion was denied by the trial judge. The failure to grant this motion is assigned as error by several exceptions.

We think there was no error on the part of the trial judge in this respect. Plaintiff's argument is based primarily on two premises: (1) that defendant admittedly turned his head for the purpose of observing approaching traffic on Pendleton Street and did not see plaintiff's car at the moment when, according to defense testimony, it stopped again; (2) that on cross-examination defendant agreed that he didn't know anything that the plaintiff could have done to have avoided being hit from the rear.

Under all of the circumstances, we think it was for the jury to say whether the conduct of the defendant amounted to negligence.

As to contributory negligence, we also think that it was for the jury to say whether there was any negligence on the part of the plaintiff in starting into the intersection and then suddenly stopping again, instead of proceeding.

With respect to both negligence and contributory negligence the dominant rule is that the determination of such questions is controlled by the facts and circumstances of the particular case and that the court will not decide such questions as a matter of law if testimony is conflicting or if the inferences to be drawn therefrom are doubtful. Jumper v. Goodwin, 239 S.C. 508, 123 S.E.2d 857; Johnson v. Atlantic Coast L. R. Co., 217 S.C. 347, 60 S.E.2d 678.

Moreover, the jury determined the issue of liability in favor of the plaintiff and there is nothing in the record before us to indicate that the plaintiff was prejudiced by the submission to the jury of all pleaded issues affecting liability, even if there were any error in so doing. We do not mean to imply or hold that a verdict favorable to a plaintiff on the issue of liability would, under all circumstances, render the erroneous submission of a defense to the jury non-prejudicial. We simply hold that in the instant case there is no showing of any prejudice.

The appellant...