Gosnell v. South Carolina Dept. of Highways and Public Transp.

• Decision Date: 15 May 1984
• Docket Number: No. 0238,0238
• Citation: Gosnell v. South Carolina Dept. of Highways and Public Transp., 320 S.E.2d 454, 282 S.C. 526 (S.C. App. 1984)
• Court: South Carolina Court of Appeals
• Parties: O.W. GOSNELL, Jr., Respondent, v. SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant. . Heard

Page 454

320 S.E.2d 454

282 S.C. 526

O.W. GOSNELL, Jr., Respondent, v. SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant.

No. 0238.

Court of Appeals of South Carolina.

Heard May 15, 1984.

Decided Aug. 27, 1984.

Atty. Gen. T. Travis Medlock and Staff Atty. Grady L. Patterson, Columbia, for appellant.

Robert E. Staton of Quinn & Smith, Columbia, and Finley B. Clarke of Clarke & Johnson, Florence, for respondent.

CURETON, Judge:

Respondent, O.W. Gosnell, Jr., brought this suit against the South Carolina Department of Highways and Public Transportation (Highway Department) for damages he sustained when his vehicle collided with a road grader owned and operated by the Highway Department. The jury returned a verdict for Gosnell and the Highway Department appeals.

At the appropriate stages of the trial, the Highway Department moved for nonsuit, directed verdict and judgment non obstante veredicto on the ground that Gosnell's injuries were caused by his sole negligence. Alternatively, the Highway Department argued that Gosnell's conduct constituted contributory negligence, thus barring him from recovery. These motions were denied by the trial judge. We reverse and remand for the entry of judgment for the Highway Department.

On the clear and sunny morning of March 26, 1980, Gosnell was proceeding in a southerly direction on U.S. Highway No. 52 when his vehicle collided with the Highway Department's road grader. At the point of the accident, U.S. Highway No. 52 is a four-lane divided highway, flat and straight. The road grader and its supporting crew were conducting road work along the right shoulder of the southbound lanes. Parked along the shoulder and off the traveled portion of the highway was a yellow tractor and a large yellow dump truck.

The road grader's method of operation was as follows. Upon moving soil forward to the desired location, the grader backed up to a position where it could move more dirt forward. As the grader backed up, part of it traveled upon the paved portion of the highway. At the time of the collision, the road grader's left front and rear wheels were upon the pavement and its other wheels were on the dirt shoulders. ¹

On appeal the Highway Department advances three arguments for reversal of the jury's verdict. First, the Highway Department contends that Gosnell's negligence in exceeding the speed limit, failing to yield the right-of-way pursuant to Code Section 56-5-2370 (Supp.1983) and failing to observe the grader on the highway constitutes the sole proximate cause of the collision. Secondly, the Highway Department argues that even if it were negligent, Gosnell's conduct constitutes contributory negligence barring recovery. Finally, the Highway Department contends that the trial judge committed reversible error by permitting Gosnell to introduce into evidence the Highway Department's regulations.

We will first consider the question of whether the trial judge erred in refusing the Highway Department's motions for nonsuit, directed verdict and judgment n.o.v., upon the ground that there was no evidence of actionable negligence on the part of the Highway Department. Our review of the record reveals evidence from which the jury could reasonably find actionable negligence.

Gosnell testified that at the time of the collision he was driving his automobile about fifty-five miles per hour. Immediately preceding the collision, he did not recall observing "speed reduction" or "road work" signs warning motorists of the road repair operation. Nor did he remember seeing a flagman or other Highway Department personnel on foot. In relating his scant recollection of the severe accident, he recounted looking down at his speedometer and then suddenly colliding with the road grader. Gosnell further testified that he did not recollect seeing any Highway Department vehicles parked or operating along the right shoulder of the highway.

Frank Moore, a business associate of Gosnell, testified that he was driving a substantial distance behind Gosnell's car and although there were several cars between his car and Gosnell's, he never lost sight of Gosnell's vehicle. While he recalled seeing a warning sign approximately one mile from the collision site, he did not remember seeing signs warning of road construction or a flagman in the immediate vicinity of the wreck. Like Gosnell, Moore testified that he did not see the road grader before the collision; he looked down at his speedometer and when he looked up again, Gosnell had collided with the road grader.

In addition to Moore, Gosnell also called as witnesses Kevin Kelly, an insurance agent, and Jessie Wilkes, the operator of the road grader. Kelly related observing "men working" signs in the vicinity of the accident, but did not remember any speed limit signs. As an eyewitness to the accident, he testified to seeing the road grader backing up with alarms sounding to a point where it obstructed more than one-half of the right lane. He estimated the speed of Gosnell's car to be fifty to fifty-five miles per hour and watched it run headlong into the rear of the grader. He noted that nothing obstructed Gosnell's view of the grader and that Gosnell did not apply his brakes before impact.

Jessie Wilkes, the road grader operator who was called as a hostile witness by Gosnell, testified that when he first spotted Gosnell's oncoming vehicle approximately 100 to 150 feet away or "maybe further," he stopped the grader and shifted into forward gear. At time of impact, the grader blocked approximately two-thirds of the right lane. He testified further that he heard no tire squeals, nor saw any skid marks on the road. He admitted that at the time of the accident, the right lane was not closed off to traffic nor was the flagman directing traffic. He related that the safety measures actually employed by the Highway Department consisted of the use of four red flashing lights on the grader, a revolving strobe light atop the cab section of the grader, a safety horn that automatically sounded when the grader geared into reverse, a danger sign mounted over the grader's radiator and road work signs posting a thirty-five miles per hour speed limit.

Witnesses for the Highway Department testified that warning signs were posted at various points as one approached the construction site and also in the immediate vicinity of the site. The former signs were permanent type signs while the latter were mobile type signs thirty-six inches in size. According to the Highway Department's witnesses, the thirty-six inch signs cautioned of road work ahead and mandated a thirty-five mile per hour speed limit. Witnesses characterized the grader operation as a "mobile operation." Thus, the Highway Department's crew chief explained that the thirty-six inch warning signs were more appropriate than forty-eight inch signs. The crew chief admitted that a flagman should have been provided for the grader when it obstructed the right lane of the highway. Finally, Jack Rhodes, an employee of a utilities company and a witness for the Highway Department, testified that he was following immediately behind Gosnell's vehicle at the time of the accident. He also testified that prior to the accident he saw the road grader in the right-hand lane, whereupon he slowed down and moved into the left-hand lane. He also related that there was nothing to obscure Gosnell's view of the grader and that Gosnell collided with the grader headlong.

In considering the question of whether the trial court erred in refusing the Highway Department's motions for nonsuit, directed verdict and judgment n.o.v., on the issue of the Highway Department's negligence, this Court must view the evidence and all inferences reasonably deducible therefrom in the light most favorable to Gosnell. Woodward v. Todd, ...