Epps v. South Carolina State Highway Dept.

• Decision Date: 04 August 1946
• Docket Number: 15866.
• Parties: EPPS v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT. VAN LIEW v. SAME.
• Court: South Carolina Supreme Court

39 S.E.2d 198

209 S.C. 125

EPPS v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT.

VAN LIEW v. SAME.

No. 15866.

Supreme Court of South Carolina

August 4, 1946

John M. Daniel, Atty. Gen., T. C. Callison and M J. Hough, Asst. Attys. Gen., and Huger Sinkler, of Charleston, for appellant.

John I. Cosgrove and J. D. E. Meyer, both of Charleston, for respondents.

BAKER, Chief Justice.

These two cases arose out of the same accident, were tried together in the Circuit Court, and come to this Court on one transcript of record. We will treat them as one case here any reference to the respondent including both plaintiffs-respondents.

The action was brought under Section 5887 of the Code of 1942 and arose out of an accident occurring at or near the intersection of State Highways Numbers 525 and 531 in that section of the County of Charleston known as North Charleston.

At the locale of the accident, these highways form a T, Highway Number 525 having a dead-end as it reaches Highway Number 531. The first mentioned highway runs north and south, the second, east and west. Both highways have a vehicular driving width of forty-nine (49) feet, and immediately to the north of Highway Number 531 is a concrete curb six (6) inches high then a grass plot thirteen (13) feet wide, then a paved sidewalk six (6) feet wide, and just beyond this sidewalk is a ravine approximately fifteen (15) feet deep. These highways are of surface-treated type, being constructed of black asphalt and crushed stone. Highway Number 525 is evenly divided by a solid white painted center line, and each of the halves is, in turn, subdivided in two by broken white lines. Four hundred ten (410) feet south of the intersection of said highways and twenty-five (25) inches from the eastern boundary of Highway Number 525 there was a junction and route-marker sign apprising travelers using this highway and traveling thereon in a northerly direction that they were about to enter Highway Number 531. At a point thirty-two (32) feet south of Highway Number 531, and twenty-six (26) inches from the eastern boundary of Highway Number 525, there was a stop sign. On the grass plot immediately to the north of Highway Number 531, and opposite the point where Highway Number 525 entered, were route-marker signs showing the direction of the highways under discussion, all of which signs were regulation signs as to size, etc.; and in addition thereto, there was a large sign on this grass plot indicating the direction of the Charleston Port of Embarkation.

At the time of the accident, the signs above mentioned were not illuminated, but there is no allegation in the complaint as to this constituting negligence on the part of the appellant.

The specifications of negligence allowed to remain in the complaint are as follows:

'(a) In causing and allowing the said ravine to be and remain at the junction of said two highways.

'(b) In failing and omitting to erect proper signs and other devices around and about said ravine to warn motorists travelling along Highway 525 of the presence and danger thereof.

'(c) In failing to erect a sufficient guard rail beside said ravine.

'(d) In failing to have proper and sufficient signs around said ravine at the time of the injury and death of plaintiff's intestate to warn motorists on said highway of the existence and location and the extremely dangerous character of the said ravine.

'(e) In failing and omitting to erect and maintain a suitable barricade to warn motorists using said highway 525 of the presence of said ravine at the intersection of the two highways.

'(f) In failing and omitting to have reflector lights or other lights warning travellers approaching the intersection of said two highways of the presence of said dangerous ravine.

'(g) In failing and omitting after notice of the dangerous character of said ravine to erect suitable and proper barriers, barricades and other precautions for the protection of motorists lawfully using said intersection.

'(h) In failing and omitting properly to make (mark?) said highway to warn the travelling public of the presence of said ravine at said intersection of two heavily travelled highways.

'(i) In causing and allowing said ravine to remain at and beside said intersection of two heavily travelled highways and in close proximity thereto, unmarked and unlighted.

'(j) In failing and omitting to take any precautions whatsoever to protect travellers lawfully using said heavily travelled intersection.

'(k) In causing and allowing a dangerous situation to exist at and beside said intersection of two heavily travelled highways to users thereof in the nighttime by reason of the presence of said unlighted, unmarked and unprotected ravine.

'(l) In causing the death of plaintiff's intestate as hereinabove set forth.'

Upon the trial of the case, the appellant made timely motions for a nonsuit and for a directed verdict in its behalf, which motions were refused. The case was then submitted to the jury, resulting in a verdict for the respondent.

The appellant in its printed brief, in stating the 'Questions Involved' having reference to these motions, propounds the question: 'Does the evidence, in these cases, present sufficient proof of actionable negligence to have required the submission of the cases to the jury for its determination?' And in its printed and oral argument the position is taken that the sole proximate cause of the accident resulting in the death of two of the occupants of the automobile involved, and injury to the other occupants thereof, even if evidence of negligence on the part of the appellant be conceded, was the negligence of the driver of the car.

To pass upon this issue, it is necessary that we discuss the testimony offered on behalf of the respondent. The testimony for the appellant is in the main contradictory of that...