Fisher v. J. H. Sheridan Co., Inc.

• Decision Date: 30 December 1936
• Docket Number: 14404.
• Citation: 189 S.E. 356,182 S.C. 316
• Parties: FISHER v. J. H. SHERIDAN CO., Inc., et al.
• Court: South Carolina Supreme Court

189 S.E. 356

182 S.C. 316

FISHER v. J. H. SHERIDAN CO., Inc., et al.

No. 14404.

Supreme Court of South Carolina

December 30, 1936

Appeal from Common Pleas Circuit Court of Spartanburg County; M. M Mann, Judge.

Action by Mrs. Neva Fisher, as administratrix of James Ernest Fisher, deceased, against the J. H. Sheridan Company Incorporated. From the judgment, the plaintiff appeals.

Judgment set aside, and new trial granted.

B. F Martin, of Greenville, and Samuel R. Watt, of Spartanburg, for appellant.

Carlisle, Brown & Carlisle and C. Y. Brown, all of Spartanburg, for respondents.

A. L. GASTON, Acting Associate Justice.

On July 26, 1934, James Ernest Fisher, who was then twelve years of age, was struck and killed by an automobile operated by J. H. Sheridan, and owned by the defendant corporation. At the time of the catastrophe, a school bus owned by the father of Ernest, and operated by him under a contract with Anderson county for the transportation of children attending the public schools, had stopped on the paved surface at a point on the highway opposite Piercetown School, for the purpose of letting Ernest out. Ernest alighted from the bus, ran down its right hand side on the shoulder adjacent to the paved surface, and attempted to cross the highway to the rear of the bus, to the school on the opposite side, and was struck by the Sheridan car, approaching from the opposite direction to that in which the bus had been traveling, but which had stopped and was then at rest. Ernest had been seated by the side of his father on the front seat of the bus and was the only pupil to leave the bus for this school, and there were about thirty children in the bus going to another school. The plaintiff sought to recover both actual and punitive damages, under the allegations of the complaint. The case was tried before Hon. M. M. Mann, as presiding judge, and resulted in the verdict of the jury at the October term, 1935, in favor of the plaintiff for actual damages. The plaintiff now appeals from the judgment entered in her favor thereon. The accident occurred in Anderson county, on public highway No. 81, and was tried in Spartanburg county, where the defendants reside. The defendant Sheridan, with his wife and two other ladies, was en route from Spartanburg to Atlanta. The school bus was proceeding along highway No. 81 in the opposite direction, but had stopped opposite the school, which was about one hundred yards off the highway.

The first issue made by the appeal is that the trial judge incorrectly construed the school bus act of 1934, in his charge to the jury to the prejudice of the plaintiff. Appellant contends that the jury might have rendered a verdict for punitive damages in favor of the plaintiff, had the court submitted to the jury the question of fact whether the defendants willfully failed to stop, as required by the statute. The learned judge instructed the jury that "the law requiring persons to stop (before Sic.) passing a school bus is not applicable in this case, for the simple reason passing means if both parties are going in the same direction, and one gets around the other he passes; but if the parties are going in opposite directions, then they meet. So passing is going around the person going in the same direction and meeting is simply getting by while going in the opposite direction." He construed the statute to mean this. He further instructed the jury that the common-law rule as to the degree of care to be exercised, would not require him to stop unless the very circumstances which were apparent to him, or should have been apparent to him by the exercise of his ordinary powers of seeing and hearing dictated that he should stop. The court so charged the jury at the request of the defendants, who submitted a written request to this effect, and also called his honor's attention thereto at the conclusion of his general charge. The respondents now contend that the exceptions should be overruled on this point for the reason that even if his honor erred in construing the statute, such error was not prejudicial: first, as to actual damages, because the finding of the jury in favor of the plaintiff fully compensates the plaintiff for all injuries due to the alleged negligence of the defendants and necessarily includes compensation based on a finding of negligence in the violation of the statute; secondly, as to punitive damages, defendants say that there were no appropriate allegations in the complaint of recklessness in this respect, and that the jury has found that there was no recklessness or willfulness on the part of the defendants; and suggests further that the school bus had stopped for "a few seconds only," which scarcely afforded opportunity for an act of conscious negligence.

The act to require all motor vehicles to come to a full and complete stop before passing a school bus either taking on or discharging school children, as enacted, was approved on the 19th of March, 1934, 38 Statutes at Large, page 1380, and reads as follows: "Be it enacted * * * that all motor vehicles traveling upon the public highways of this State are required to come to a full and complete stop before passing any school bus which has stopped for the purpose of taking on and discharging school children and shall remain stopped until said children are taken on or discharged and until such school bus has moved on."

We are constrained to hold that the charge of the circuit judge in regard to the statute was erroneous. The statute plainly and clearly requires all motor vehicles to come to a full and complete stop before passing any school bus which has stopped to take on or discharge school children; and to remain stopped until the children are taken on or discharged, and until such school bus has moved on. As long, therefore, as the school bus is at rest for the purpose of taking on or discharging school children, and until it has moved on, all motor vehicles must come to a full and complete stop before passing such stationary school bus, which has stopped as aforesaid, and all such motor vehicles, must remain stopped as aforesaid. No motor vehicle traveling the public highway is allowed to pass any school bus which has stopped for the purposes set forth in the act. The word "pass" employed in the act means to go by, regardless of whether the school bus and the motor vehicle are traveling in the same direction or in opposite directions at the time when the school bus comes to a stop. This is the meaning of the word "pass" as used in other statutes of this state regulating the operation of motor vehicles upon the public highways of the state, and intended to promote the safety of all persons who are using the highways. Section 1634 of the Code of 1932 is in point and requires motorists, upon request of persons riding or driving a restive horse or other draft animal, to bring his motor vehicle immediately to a stop, if necessary, and if traveling in the opposite direction to remain stationary as long as may be reasonable to allow such horses or animals to pass. And if traveling in the same direction the motorists shall not pass any such person until he has gotten to a place of safety. The word "pass" is used in this section of the Code where the parties are traveling in the opposite direction as well as in the same direction. Gue v. Wilson, 87 S.C. 144, 69 S.E. 99.

To the same effect is Section 1629 of the Code which requires the motorist who meets on the public highway any other person traveling in the opposite direction to reasonably turn to the right of the center of such highway, "so as to pass without interference"; and requires the motorist on overtaking any such other person, to "pass on the left side thereof"; and the word "pass" applies whether the parties meet or overtake one another. Therefore, the law of the road as enacted by the statutory provisions of this state uniformly forbid the passing under the circumstances set forth in each act and make this word applicable where the parties approach each other from the opposite direction and thus meet on the highway as well as where the parties overtake one the other and thus circumvent one...