Eickhoff v. Beard-laney Inc

• Decision Date: 11 May 1942
• Docket Number: No. 15407.,15407.
• Court: South Carolina Supreme Court
• Parties: EICKHOFF. v. BEARD-LANEY, Inc., et al.

20 S.E.2d 153
109 S.C. 500

EICKHOFF.
v.
BEARD-LANEY, Inc., et al.

No. 15407.

Supreme Court of South Carolina.

May 11, 1942.

[20 S.E.2d 153]

Appeal from Common Pleas Court, of Dorchester County; G. B. Greene, Judge.

Action for personal injuries by Ella R. Eickhoff against Beard-Laney, Inc., One Mack Truck and Trailer bearing 1941 S. C. License No. P-428, and National Lloyds. From a judgment for plaintiff, defendants appeal.

Affirmed.

Walker, Walker & Jenkins, of Summer-ville, for appellants.

J. D. Parler, of St. George, and Robinson & Robinson, of Columbia, for respondent.

[20 S.E.2d 154]

STUKES, Justice.

Plaintiff was an occupant of her husband's automobile operated by him on his right side of the center of the paved highway, State No. 2, near Summerville, in the early afternoon of a clear day in August, 1941, when it was struck without warning from behind by a gasoline tank truck, which is a defendant as are the owner and the insurer of the latter as a public carrier.

The Eickhoffs and a young lady guest were en route from their home in Chattanooga to Charleston to visit their son who was employed at the navy yard and they had motor trouble earlier in the day, stopping at Williston for service where advice was given by a mechanic that the automobile should not be run over twenty-five or thirty miles an hour, and the speed was thus thereafter limited. The collision was of such force that the automobile was thrown from the point of contact one hundred and twelve feet into an adjacent field where it knocked down one fence post of unusually large size and came to rest up and astride another. The truck and trailer went to the left after the impact about the same distance and landed in a nearby ditch.

Mrs. Eickhoff was hurled out of and a considerable distance from her car, was rendered unconscious by many injuries and was thereafter a patient in the Dorchester Hospital for about four weeks and was still suffering from some of her injuries, alleged to be permanent, at the time of the trial of the action.

She brought the latter for damages for her personal injuries and in her complaint set forth many specifications of alleged careless and negligent operation of the truck, among them excessive and unreasonable speed, failure to keep a proper lookout, lack of control, failure to turn to the left in order to avoid the collision and insufficient brakes.

She testified at the trial, as did the other occupants of the automobile, including Mr. Eickhoff, the driver. None saw or heard the approaching truck before it struck the rear of their automobile and there was no other or approaching vehicle, thus there is no direct testimony establishing the allegations of negligence or other cause of the event except it, itself, and its marks, signs and effects, many of which were covered by the testimony.

The only other witness for the plaintiff was the highway patrolman who investi gated the wreck, arriving on the scene a few minutes afterward. He testified as to the position and condition of the wrecked vehicles, the evidence upon the pavement establishing the place of the collision on the driver's right of the center, that the highway was there straight, and was about to testify as to statements made to him by the operator of the truck when the evidence was objected to by counsel for defendants and the Court held that it was hearsay and not admissible as a part of the res gestae.

The defendants moved for a nonsuit upon the ground that there was no proof of negligence on the part of any of the defendants, and upon the overruling of the motion announced that they would offer no evidence and thereupon moved for a direction of the verdict for them upon the same ground, which was likewise overruled. Verdict was returned for the plaintiff in the full amount sued for, $3,000, and motion for a new trial was made upon the ground stated and overruled.

The appeal is upon three exceptions, but appellants' counsel aptly say in argument that they...