Gillespie v. Ford, 16847

CourtUnited States State Supreme Court of South Carolina
Citation225 S.C. 104,81 S.E.2d 44
Decision Date19 March 1954
Docket NumberNo. 16847,16847
PartiesGILLESPIE v. FORD et al.

W. G. Acker, John D. Vickery, Jr., Pickens, W. Harper Welborn, Anderson, for appellant.

Watkins & Watkins, Harris & Harris, Anderson, for respondents.

STUKES, Justice.

This action is for damages to plaintiff's automobile and for his loss of consortium by reason of personal injuries suffered by his wife in a collision between his automobile, which she was driving, and the defendant automobile which was operated by the personal defendant Ford. The insurance company was joined as a defendant upon allegations that Ford was its agent and servant and in the scope of his employment at the time of the collision, whereby it is liable under the doctrine of respondeat superior.

Trial of a companion action against the same defendants by plaintiff's wife for her damages for personal injuries resulted in verdict in her favor against all of the defendants. Upon appeal it was held that the only reasonably inference from the evidence adduced in the trial of that action was that the plaintiff was guilty of negligence, carelessness and recklessness which contributed as a proximate cause to her injury, whereby the verdict and judgment thereupon were set aside and the case remanded for entry of judgment in favor of the defendants. Gillespie v. Ford, 222 S.C. 46, 71 S.E.2d 596.

At the conclusion of the evidence offered for plaintiff at the trial of the present action the trial judge granted defendants' motion for order of nonsuit upon the ground that the case for the plaintiff could not be distinguished on the facts from the former, cited action. Plaintiff appealed and the defendant insurance company filed additional sustaining grounds for the order of nonsuit in its favor which are to the effect that plaintiff's evidence failed to establish that the agency of Ford included the operation of his automobile which he was driving, that Ford was an independent contractor and not a servant of the company and, finally, that Ford was not acting within the scope of his agency or employment at the time of the accident.

After careful consideration of the evidence adduced in the first action, as stated in the opinion of this court upon the appeal of it, cited supra, and comparison of it with the evidence presented in the instant case, as contained in the record now before us, we are convinced that there are important differences which required the denial of the motion for nonsuit; and this conclusion is equally applicable, for the reasons hereinafter stated, to the primary appeal of the present appellant, which relates to the facts of the accident, and to the issues relating to the liability of the insurance company for the tort of Ford, its admitted agent, at the time and place of the collision. The evidence will be briefly stated in order to demonstrate the soundness of the view expressed.

The wife of appellant, who was driving his automobile alone, will be referred to as Mrs. Gillespie. She testified that she was on her way from her Easley home to that of her mother in Belton and went by an unusual route because of construction in progress on the more direct and usual route. She knew the way she went on this occasion but not very well, having traveled it only once or twice before and then with her husband driving. She was cognizant of her approach to the intersection at which the collision occurred but thought that the road on which Ford approached to her left, which was paved only to the intersection, terminated at the paved road which she was traveling. She was driving at a speed of thirty miles per hour until she slowed for the intersection and put her foot on the brakes but, seeing nothing and thinking the road clear, she did not apply them; she looked first to the right at what she thought was a driveway from a house situate at the intersection, then she looked to her left and saw no vehicle approaching whereupon she started through the intersection, which was at a point about one hundred feet from it; she thought that she could see about three hundred feet up the road on which Ford approached, but she never saw his car, looking ahead at the road before her when the vehicles collided. (She had to look three ways within a few seconds--see the patrolman's testimony, infra.) She was driving on the right of her road and denied the accuracy of her testimony at the trial of the other action that she was on the left of the road. She was cross-examined at length from the record of her former testimony and explained that she must have misunderstood some of the questions on cross-examination at that time because she always drove on the right of the road, and she said that at the time of the trial of the first action she was suffering from her injuries and was hearing poorly. (Her testimony in the former action was properly permitted to be used to contradict and discredit her, but that went to the credibility and was for the consideration of the jury; the court was bound upon the motion for nonsuit in the trial of this action to consider the testimony as then given; and so are we upon appeal.)

A disinterested witness who lived in the neighborhood, and had met the mailman at the intersection, testified that he saw the collision and observed both automobiles as they approached. He said that Mrs. Gillespie was on her right and Ford's car, quoting, 'was going really fast.' The latter applied his brakes and the car skidded sixteen or eighteen 'good long steps' before the collision. Mrs. Gillespie's car, which he thought was traveling about thirty or thirty-five miles an hour, entered the intersection ahead of Ford and the front of it was practically through the intersection when struck; he further described Ford's speed as 'plenty fast.' This witness also testified to the distance from the intersection at which an automobile was visible on the respective roads, which was in agreement with the testimony of the highway patrolman to which we next refer. After the collision Ford, who seems not to have been seriously injured, asked this witness, quoting from the latter's testimony again, 'What to do, must he go to jail, must he call the law or what must he do * * *.'

The patrolman testified that the scene of the collision, which he investigated, was three or four miles north of the town of Williamston. He found skid marks extending about fifty feet in the direction from which Ford came. The collision occurred about the middle of the road; Ford's car was damaged on the right front corner and Mrs. Gillespie's on the left, about the door. A car traveling sixty miles an hour covers eighty-eight feet per second and one traveling thirty miles, forty-four feet. There were no stop signs at the intersection. As Ford approached, Mrs. Gillespie was on his right, and he on her left as she approached. From her approach, a car on Ford's road was visible from a point about three hundred feet from the intersection; Ford could see the car from her approach when he was about two hundred and twenty-eight feet from the intersection. Ford's approach to the intersection was downgrade, while Mrs. Gillespie's was level.

The foregoing summary of the evidence concerning the circumstances of the collision is by no means complete but we think it is sufficient to show that it was error to grant the order of nonsuit. It is axiomatic that in considering such a motion the evidence, and all reasonable inferences therefrom, should be considered most favorably to the plaintiff. Ordinarily, it is the function of the jury to pass upon the issues of negligence, wilfulness and wantonness and contributory negligence, wilfulness and wantonness. Moreover, in this case the unusual ground upon which the nonsuit was granted makes the error clearer; contributory negligence is an affirmative defense and the defendant who pleads it has the burden of establishing it by the preponderance of the evidence. It rarely becomes a question of law for the court.

We should not unnecessarily comment upon the facts of the case as it will have to be tried again, but because of the division of the court it will be said that under the evidence offered by the plaintiff, standing alone as it does now, the trial jury might reasonably find that Ford was guilty of recklessness, wilfulness and wantonness to which the simple contributory negligence of Mrs. Gillespie, if found by the jury, would not constitute a defense to defendants' liability. There was direct and circumstantial evidence of excessive speed of Ford's automobile in approaching an intersection where the statute required him to drive more slowly. For a distance of two hundred and twenty-eight feet from the intersection he had a view of Mrs. Gillespie's car, if he was looking; and, on his right as they approached, she admittedly had the right-of-way. Of course, despite this, she was bound to exercise due care under the circumstances but whether she did or whether she was guilty of negligence and, if so, in what degree, if Ford was guilty of more than simple negligence, are all issues which should be submitted to the jury under proper instructions, as is the ever-present issue of proximate cause in such cases.

The foregoing rules are so well-established that authorities need hardly be cited to sustain them, but see generally the following recent decisions which are taken from appellant's brief: Spearman v. Couch, 218 S.C. 430, 63 S.E.2d 161; Dawson v. South Carolina Power Co., 220 S.C. 26, 66 S.E.2d 322; Hopkins v. Derst Baking Co., 221 S.C. 497, 71 S.E.2d 407, Rogers v. Atlantic Coast Line R. Co., 222 S.C. 66, 71 S.E.2d 585.

The present action is similar to that of Priester v. Southern R. Co., 151 S.C 433, 149 S.E. 226, 227. There the plaintiff's wife lost her suit for damages for personal injuries in the Federal Court. The cited case was thereafter brought by her husband for damages for the loss of the services of...

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18 practice notes
  • Butler v. Temples, 17039
    • United States
    • United States State Supreme Court of South Carolina
    • 25 Julio 1955
    ...the burden of establishing it by the preponderance of the evidence. It rarely becomes a question of law for the court.' Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44, 47, and earlier cases there It would be unreasonable to hold that parents are guilty of negligence, as a matter of law, in p......
  • Beall v. Doe, 0157
    • United States
    • Court of Appeals of South Carolina
    • 3 Febrero 1984
    ...United States Court of Appeals relied upon Priester v. Southern Ry., 151 S.C. 433, 149 S.E. 226 (1929) and its progeny, Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44 (1954), and Hiott v. Contracting Services, 276 S.C. 632, 281 S.E.2d 224 (1981). The district court held that Priester, which ......
  • Griffin v. Griffin, 0208
    • United States
    • Court of Appeals of South Carolina
    • 29 Marzo 1984
    ...contributory negligence become a question of law for the court. Ward v. Zelinski, 260 S.C. 229, 195 S.E.2d 385 (1973); Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44 (1954). It becomes so only when the evidence is susceptible of but a single reasonable inference. Gray v. Barnes, 244 S.C. 454......
  • Szantay v. Beech Aircraft Corporation, Civ. A. No. AC-1105
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 19 Enero 1965
    ...The important consideration is the acts or activities of the parties. McNeill v. Elec. Storage Battery Co., supra; Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44, 49. See also Tate v. Claussen-Lawrence Const. Co., 168 S.C. 481, 167 S.E. 826, 829, where the court observed, in a context differ......
  • Request a trial to view additional results
18 cases
  • Butler v. Temples, 17039
    • United States
    • United States State Supreme Court of South Carolina
    • 25 Julio 1955
    ...the burden of establishing it by the preponderance of the evidence. It rarely becomes a question of law for the court.' Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44, 47, and earlier cases there It would be unreasonable to hold that parents are guilty of negligence, as a matter of law, in p......
  • Beall v. Doe, 0157
    • United States
    • Court of Appeals of South Carolina
    • 3 Febrero 1984
    ...United States Court of Appeals relied upon Priester v. Southern Ry., 151 S.C. 433, 149 S.E. 226 (1929) and its progeny, Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44 (1954), and Hiott v. Contracting Services, 276 S.C. 632, 281 S.E.2d 224 (1981). The district court held that Priester, which ......
  • Griffin v. Griffin, 0208
    • United States
    • Court of Appeals of South Carolina
    • 29 Marzo 1984
    ...contributory negligence become a question of law for the court. Ward v. Zelinski, 260 S.C. 229, 195 S.E.2d 385 (1973); Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44 (1954). It becomes so only when the evidence is susceptible of but a single reasonable inference. Gray v. Barnes, 244 S.C. 454......
  • Szantay v. Beech Aircraft Corporation, Civ. A. No. AC-1105
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 19 Enero 1965
    ...The important consideration is the acts or activities of the parties. McNeill v. Elec. Storage Battery Co., supra; Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44, 49. See also Tate v. Claussen-Lawrence Const. Co., 168 S.C. 481, 167 S.E. 826, 829, where the court observed, in a context differ......
  • Request a trial to view additional results

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