Eickhoff v. Beard-Laney, Inc.

• Decision Date: 11 May 1942
• Docket Number: 15407.
• Parties: EICKHOFF v. BEARD-LANEY, Inc., et al.
• Court: South Carolina Supreme Court

20 S.E.2d 153

199 S.C. 500

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

No. 15407.

Supreme Court of South Carolina

May 11, 1942

Walker Walker & Jenkins, of Summerville, for appellants.

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

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 investigated 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 raise the single question: "Is there any evidence or proof that the injuries complained of were the result of, or caused by, the negligence of the defendants, or any of them?"

They frankly challenge the Court to adopt the generally accepted, but often misunderstood, rule of evidence commonly known as res ipsa loquitur, without which adoption they argue that the judgment in this case must be reversed for lack of evidence to sustain plaintiff's allegations.

As is well known the Courts of this State have consistently declined to subscribe to the theory mentioned. Possibly our last utterance on the subject is found in Boylston v. Armour & Co., 196 S.C. 1, 12 S.E.2d 34, where it was expressly said that the doctrine is not of force here but it was held that the evidence in that case, of results rather than directly of a cause moving from the defendant's act, was sufficient for the jury to reasonably infer negligence.

We know of no better brief discussion of the subject than is found in 38 Am. Jur., in its treatment of Negligence beginning with paragraph 295, on page 989; we quote sparingly from pages 992, 993 (See also the notes there cited in the various annotated series.): "It is important in considering the res ipsa loquitur doctrine and its application and effect in given cases, to distinguish that doctrine from the principle that negligence may be established by circumstantial evidence. Failure to observe this distinction has led to some uncertainty ***.

"In other words, in the situation to which res ipsa loquitur as a distinctive rule applies, there is no evidence, circumstantial or otherwise, at least none of sufficient probative value, to show negligence, apart from the postulate, which rests on common experience and not on specific circumstances of the instant case, that physical causes of the kind which produced the accident in question do not ordinarily exist in the absence of negligence, that is, in the absence of a breach of duty such as defendant owed to plaintiff. Rejection of the doctrine of res ipsa loquitur does not mean that negligence may not be established by circumstantial evidence as well as by direct evidence." (Emphasis added.)

For this the text cites in footnote Gantt v. Columbia Coca-Cola Bottling Co., 193 S.C. 51, 7 S.E.2d 641, 645, 127 A.L.R. 1185, in which this Court tersely said: "'The doctrine of res ipsa loquitur, as this Court has repeatedly held, is not a part of the law of this State; and hence is wholly irrelevant. It scarcely needs to be added, however, that obviously this does not mean that negligence may not be established by circumstantial evidence as well as direct evidence.'

" Res ipsa loquitur and circumstantial evidence have been distinguished upon the question whether the circumstances proved point merely to the physical cause of the occurrence, without having any tendency to indicate the responsible human agency, or, upon the other hand, have some tendency to indicate some fault of omission or commission upon the part of the defendant. If the former, it is necessary to invoke the rule of res ipsa loquitur, which is applicable to the fact of negligence only, in order to make out a prima facie case of negligence; if the latter, the general principle, which is applicable to all matters of fact, that a fact may be established prima facie by circumstantial evidence, suffices, without invoking the distinctive doctrine of res ipsa loquitur."

There are sufficient references above to the complaint to show that the plaintiff has not pitched her case and claim upon res ipsa loquitur; on the contrary she alleged numerous acts of negligence which she undertook to prove by the testimony of all of the occupants of her car, including herself, and of the highway investigating officer, that the automobile was moving at a reasonable rate of speed on its right of the center of the road, under perfect control in clear daylight and on a straight, open highway on which no other vehicles were approaching...