Eberhardt v. Forrester

• Court: South Carolina Supreme Court
• Writing for the Court: BUSSEY; TAYLOR
• Citation: Eberhardt v. Forrester, 241 S.C. 399, 128 S.E.2d 687 (S.C. 1962)
• Decision Date: 17 December 1962
• Docket Number: No. 18007,18007
• Parties: Cladys A. EBERHARDT, Appellant, v. G. D. FORRESTER and James P. Clardy, d/b/a Forrester & Clardy and William Harry Smith, Respondents. G. D. FORRESTER and James P. Clardy, d/b/a Forrester & Clardy, Respondents, v. J. V. EBERHARDT and Gladys A. Eberhardt, Appellants.

Page 687

128 S.E.2d 687

241 S.C. 399

Cladys A. EBERHARDT, Appellant, v. G. D. FORRESTER and James P. Clardy, d/b/a Forrester &

Clardy and William Harry Smith, Respondents.

G. D. FORRESTER and James P. Clardy, d/b/a Forrester &

Clardy, Respondents, v. J. V. EBERHARDT and Gladys A. Eberhardt, Appellants.

No. 18007.

Supreme Court of South Carolina.

Dec. 17, 1962.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellants.

Love, Thornton & Arnold, Greenville, for respondents.

BUSSEY, Justice.

J. V. Eberhardt, accompanied by his wife, Gladys A. Eberhardt, was driving a Chrysler automobile (the property of his wife) in an easterly direction along West Faris Road in the City of Greenville, South Carolina, when involved in a collision with a Chevrolet automobile owned by G. D. Forrester and James P. Clardy, d/b/a Forrester & Clardy, used car dealers, and operated by William Harry Smith, a prospective purchaser, in a northerly direction on Brookview Circle. As a result of this collision both vehicles were damaged and Gladys A. Eberhardt sustained serious bodily injuries.

Gladys A. Eberhardt instituted action against G. D. Forrester and James P. Clardy, d/b/a Forrester & Clardy and William Harry Smith; and G. D. Forrester and James P. Clardy, d/b/a Forrester & Clardy instituted an action against J. V. Eberhardt and Gladys A. Eberhardt. J. V. Eberhardt counterclaimed to the latter action, and by consent of counsel for each of the parties, the actions were consolidated for trial.

The consolidated cases were tried before the Judge of the County Court and a jury, and during the course of the trial appellants sought, both on direct and cross-examination, to question witnesses about remarks of William Harry Smith to James P. Clardy at the scene of the accident pertaining to the brakes on the Chevrolet automobile. Upon objection, the trial judge ruled such evidence inadmissible.

At the conclusion of the testimony, the respondents moved for a directed verdict as to the actions asserted against G. D. Forrester and James P. Clardy, d/b/a Forrester & Clardy, which was granted, thus dismissing the counterclaim of J. V. Eberhardt to which William Harry Smith was not a party, and submitting the cause of Gladys A. Eberhardt to the jury only as against William Harry Smith.

The jury returned a verdict in favor of Forrester and Clardy, for damage to the Chevrolet automobile, and a verdict in favor of the defendant William Harry Smith in the action by Gladys A. Eberhardt. The appellants, Eberhardt, made timely motions for a new trial, which were denied.

West Faris Road extends from some undesignated point outside the city limits of Greenville into the city and on up to Augusta Street in the City of Greenville. The distance from the city limits to Augusta Street does not appear in the record, but it does appear that there are a number of streets intersecting West Faris Road between the city limits and Augusta Street. Just after entering the city limits of Greenville, the first intersecting street to the south is known as Brookview Circle, and the extension thereof to the north of West Faris Road is known as Melville Avenue. Brookview Circle is a circle off Faris Road and re-enters the same at a point other than the intersection where the collision occurred.

Prior to the time of the collision and subsequently thereto, stop signs were in place on all streets intersecting West Faris Road between the city limits and Augusta Street, thus constituting West Faris Road within the city limits of Greenville a 'through highway' within the purview of the applicable statute. Code Section 46-252. However, at the time of the collision the stop sign on Brookview Circle at the entrance to West Faris Road was not in place and had evidently been removed and not yet replaced in the course of widening Brookview Circle. Exactly when the sign was removed or replaced does not appear in the record.

Eberhardt was familiar with West Faris Road and considered it a through street. There is nothing in the record to indicate that he had any knowledge that the stop sign on Brookview Circle was temporarily missing. On the other hand, Smith testified that he was not familiar with the area, but that in trying out the Chevrolet he had, shortly before the collision, crossed the intersection going south into Brookview Circle.

There is conflict in the testimony as to the relative speeds of the two vehicles and the manner of approaching the intersection by the two drivers. There is evidence to the effect that the Chevrolet laid down skid marks of twenty-six feet before coming in contact with the Chrysler, and the front portion of the Chevrolet came in contact with the right front door of the Chrysler, the evidence reflecting a considerable impact. There is evidence to the effect that the streets were damp at the time of the collision and that there was some loose gravel on the street surface.

We have not reviewed all of the evidence, but the foregoing is, we think, sufficient for the purpose of discussing the questions necessary to be decided.

The exceptions are numerous, but some of them have been abandoned, leaving only three questions which we think necessary and proper to decide.

Appellants offered to prove that when the defendant Clardy arrived at the scene of the accident, some fifteen or twenty minutes thereafter, Mr. Smith told Mr. Clardy that 'These brakes are the hardest on this car that I have ever seen--on any car I have ever driven', to which Mr. Clardy allegedly replied, 'When the car left the shop the brakes were ok.' The trial judge ruled this line of testimony inadmissible and refused to allow it to be taken in the presence of the jury. He also ruled that counsel for appellants could not cross-examine either Smith or Clardy about the conversation which allegedly took place between them. Just what the defendant Smith meant by the quoted statement is not clear, but it is certainly inferable that he meant the brakes were not in good working order, and this is particularly true in view of his testimony to the effect that he was not going more than ten or fifteen miles per hour at the time he applied the brakes, but still laid down skid marks of twenty-six feet and came into contact with the Chrysler with considerable force.

In this ruling we think the trial judge was clearly in error. The statement, unexplained, was certainly in the nature of an admission that the brakes were not in good order, made by a defendant to another defendant. The statement was clearly admissible as against the defendant Smith, and the other defendants were not entitled to have the same excluded. They were entitled only to a ruling or instruction thereabout. Any such statement on the part of Smith would be evidence to be considered against the other defendants only to whatever extent the evidence showed the same had been acquiesced in or adopted by Clardy.

The next question for consideration is whether the judge correctly charged the jury with respect to the respective rights and duties of the parties in approaching and entering the intersection; and particularly as to the right of way at the intersection, under the facts disclosed by the evidence. The respondents took the position that neither street was at the time a 'through highway' and that the rights and duties of the parties were controlled by that portion of Sec. 46-421 of the Code reading as follows:

'The driver of a vehicle approaching an intersection shall yield the...