Dickard v. Merritt, 19265

• Decision Date: 03 August 1971
• Docket Number: No. 19265,19265
• Citation: 182 S.E.2d 886,256 S.C. 458
• Court: South Carolina Supreme Court
• Parties: judson C. DICKARD, Respondent, v. Bryan MERRITT, Appellant.

Page 886

182 S.E.2d 886

256 S.C. 458

judson C. DICKARD, Respondent, v. Bryan MERRITT, Appellant.

No. 19265.

Supreme Court of South Carolina.

Aug. 3, 1971.

J. D. Todd, Jr., of Leatherwood, Walker, Todd & Mann, Greenville, and Felix L. Finley, Jr., Pickens, for appellant.

W. H. Arnold, of Love, Thornton, Arnold & Thomason, and Ernest J. Howard, Greenville, and John D. Vickery, Pickens, for respondent.

BUSSEY, Justice:

Plaintiff-respondent recovered a verdict for actual damages in the amount of $60,000 for quite serious personal injuries sustained when the car in which he was driving was in collision with a truck owned and operated by defendant-appellant. The collision occurred in August 1968 on South Carolina Highway 8 in Pickens County, a short distance south of the City of Easley. While there are a number of questions on appeal, the principal contention of the defendant is that the collision was an unavoidable accident, without any fault on his part.

In determining whether the defendant was entitled to a directed verdict or judgment non obstante veredicto, it is elementary that the evidence, together with all the inferences reasonably deducible therefrom, has to be viewed in the light most favorable to the plaintiff. We proceed to review the evidence and state the facts in the light of such principle.

Defendant's vehicle was a milk truck with a load capacity of approximately 8,000 pounds, carrying at the time a load of 5,500 pounds. Such truck was proceeding in a northerly direction, while a Chevrolet automobile driven by the plaintiff was proceeding in a southerly direction. Approaching the scene of the collision, from both north and south, there are signs indicating an S curve and specifying a speed limit of 35 miles per hour, all of said signs being quite some distance in either direction from the point of impact. Beyond the signs facing a northbound traveler the road goes over a hill, curves to the left downhill, goes through the intersection of a secondary road, which intersects from the west, and then curves sharply to the right. The actual point of the collision was a short distance north of the intersection of the secondary road and, admittedly, in the southbound or plaintiff's lane of Highway No. 8.

Briefly stated, it is the defendant's contention that due to a latent defect in the lock rim of the left front wheel of his truck the inner tube exploded causing him to lose control of the truck, veer across the center of the highway, and collide with the front of the vehicle driven by plaintiff. It is conceded that one or more explosions occurred prior to the collision and there is evidence that both front tires on the truck were flat after the collision. Evidence on behalf of the defendant tending to prove the latency of the defect which allegedly caused the tube explosion is unrefuted in the record. Conceding, however, that the defendant was not responsible for the blowout, there was, we think, abundant evidence of actionable negligence on his part.

As defendant approached the scene he was not only in a 35 mile per hour zone, but was going over and down a hill, through a curve to his left, through an intersection of another highway and into a sharp curve to his right. There is evidence that his speed was as much as 50 miles per hour at the time of the blowout and that at the point of impact, some 300 feet away, his speed was still 30 to 35 miles per hour. The brakes of the truck were applied with considerable skid marks being laid down. The front ends of both vehicles were substantially demolished; the plaintiff's car was turned completely around and headed back toward Easley; and the truck, after the collision, proceeded a considerable distance down the west shoulder of the highway into a ditch, with its front end buried in a bank. When all of the foregoing evidentiary matters are considered, we deem it so abundantly clear that the defendant was not entitled to a directed verdict as to render unnecessary the discussion of pertinent statutory or case law.

Defendant contends that the trial judge should have granted his motion to strike from the complaint the allegations of negligent failure to keep a proper lookout. There was no error in this respect. Defendant himself testified that he was not sure he remembered seeing the speed limit sign prior to the time of the accident. Additionally, he testified that he had driven this particular highway thousands of times and this fact coupled with the evidence as to his speed and manner of driving is clearly susceptible of the inference that he was oblivious to the particular part of the highway which he was reaching and traversing and the dangerous nature thereof.

The defendant asserts error on the part of the trial judge in charging the jury, inter alia,

'I charge you that a motorist has the duty to exercise due care to control his vehicle even though it was set in motion by means over which he had no control.'

The foregoing charge is a rather inept statement of a very sound proposition of law, and taken out of context seems rather confusing. We might add that had not the objection thereto been quite as ineptly stated as the charge itself, His Honor might well have clarified it. Immediately preceding the...