Dawson v. South Carolina Power Co., 16527

Citation66 S.E.2d 322,220 S.C. 26
Decision Date30 July 1951
Docket NumberNo. 16527,16527
CourtUnited States State Supreme Court of South Carolina

G. L. B. Rivers, Charleston, for appellant.

Meyer, Goldberg & Hollings, Charleston, for respondent.

STUKES, Justice.

This is an appeal from judgment for $10,000. actual damages and $10,000 punitive damages for wrongful death. Sections 411, 412, Code of 1942. The deceased, who was respondent's wife and the mother of three adult children, was leaving her home on the east side of Meeting Street Road, near the City of Charleston, to join friends who had parked their automobile about opposite her gate and across the road, when she was struck and killed by appellant's passenger bus. She waved to them as she left her porch. They (two ladies) testified for appellant but they admitted that their view of the accident was obstructed by the bus with which the deceased collided. They did not see or hear it or any warning until it was close upon them and they did see the deceased look for approaching vehicles. The road was straight for long distances in both directions and there were no obstructions of consequence to the vision of travelers. It was a clear afternoon, about 3 o'clock. The police testified for respondent that children just dismissed from a neighboring school were on the road immediately afterward, which was contradicted by defense witnesses, or at least the latter said the children were not there before or at the time of the accident.

The bus was traveling north and approaching a scheduled stop which was about 150 feet from the point of collision. It proceeded practically to the 'stop' before coming to rest after the accident. There was no other nearby traffic. Respondent's witnesses, two of whom were county police officers who reached the scene very promptly, testified to signs on the extreme right front corner of the bus of contract with the head of the deceased, with continued like evidence across the folding door there located, but by all accounts deceased's head was finally crushed by contact with the protruding frame at the rear of the door. Death was instant, or very nearly so. The body came to rest on the edge of the pavement. The paved area of the roadway was of the width of 27 feet and adjoining was a sand-asphalt shoulder of 1.5 feet and between it and the 3-foot concrete sidewalk was a grass-covered each shoulder 10.5 feet wide. A large scale map and police department photographs of the scene were in evidence.

A principal witness for respondent was a colored storekeeper who happened to be in front of his nearby corner store and saw the accident. He testified that the deceased came from her gate to the pavement and looked in both directions, made four or five steps into the road, then stepped back two or three feet and stood still. The fast approaching bus turned toward the right when near her, then to the left and finally back to the right and struck the deceased. This witness said that the bus was running from 40 to 45 miles an hour and the horn was not sounded and there was no sign of braking. The testimony of another bystander eye-witness was substantially the same although he was not definite that deceased was still when struck. He said: 'She made a look up and down the road, and stepped out into the road, and then she hesitated and stepped back, and when she stepped back, that is the time it struck her.' He estimated the speed of the bus at between 35 and 40 miles per hour; there was no blowing of the horn or other warning signal and no use of the brakes, he said.

The driver of the bus testified that his speed was from 20 to 25 miles an hour, reduced to from 15 to 20 by the time of the collision. He first saw the deceased only a second or two before the impact when the bus was 20 to 25 feet distant and he swerved to his left but the deceased kept coming toward the bus and ran into the side of it. He then applied the brakes. He did not sound his horn. However, a police officer had earlier testified for respondent that the driver told him at the scene that he did not see the deceased before the collision; and a State Highway Patrolman testified in reply, in contradiction of the driver, that the latter said immediately after the collision that he was driving 30 miles per hour. The statutory maximum speed at that point was 35 miles per hour which is qualified by the following from Sec. 60 of art. VI of the Uniform Highway Traffic Act of 1949, 46 Stat. at pages 486, 487:

'(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.

'(b) Where no special hazard exists that requires lower speed for compliance with (a) of this section the speed of any vehicle not in excess of the limits specified in this section or established as hereinafter authorized shall be lawful, * * *.'

Shortly after the accident the officers obtained a written statement by the driver of the bus which was introduced in evidence. Part of it follows: 'I saw a car parked on the left of the road and a lady walked out of a house, and across a little grass plot on the right of the road. I looked at the car on the left and just as I glanced back I saw the lady run into the side of the bus. I made all attempts possible to pull the bus to the left to avoid the accident, and stopped the bus in about 125 feet.' Important variance is noted between this statement and the driver's testimony at the trial, some of which is recounted above. We explained his failure of memory as follows: 'Well, I was so upset, I disremember. It's been quite a long time.'

Timely motions were made by appellant for nonsuit, directed verdict and judgment non obstante veredicio, all of which were denied, and they are the subject of appeal. Appellant's first two questions may properly be considered together. They embody the contentions that the only reasonable inferences from the evidence are, first that the negligence and recklessness of the deceased was the sole proximate cause of her death, and, second, that she was guilty of contributory negligence and wilfulness which bars recovery. It is relatively easy to answer the first question adversely to appellant. Enough of the evidence has been stated to show that there was proof of negligence on the part of the driver and evidence of wilfulness. According to his statement when the facts were fresh in his mind, he saw the beginning of the attempt by the deceased to cross the road despite the bus but gave no warning of his approach and made no effort to stop. There was a wide and unobstructed paved area of the road through which he could have guided the bus and avoided the collision. We think it is reasonable to infer from the facts that he was bearing to the right in approaching the bus stop, about 150 feet away, and failed to exercise any care with respect to decedent.

The second point, that the only reasonable inference from the evidence is that decedent was contributorily guilty of negligence and wilfulness, is more difficult. But we do not think that such is the only reasonable inference, which made of it an issue for the jury. According to the testimony introduced by respondent the deceased looked in both directions for approaching vehicles and must have seen the bus because she stepped back from its path, but a few inches short of safety. The court may say that if we had been in the place of the jury, in consideration of the printed record and exhibits, we should have found a contrary verdict, but the members of the jury are the fact-finders, not the court. Only when the court is convinced that but one reasonable inference can be drawn from reasonable inference case does a contended issue of fact become one of law for the court. This is not such a case.

Applicable, and embraced in the instructions to the jury, were the following provisions of art. X of the Uniform Highway Traffic Act of 1949, 46 Stat. 466, 497, cited above with respect to the speed of the bus:

'Section 92: Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

* * *

* * *

'Section 93:...

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