Gray v. Barnes
| Citation | 244 S.C. 454,137 S.E.2d 594 |
| Decision Date | 21 July 1964 |
| Docket Number | No. 18242,18242 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Robert M. GRAY, by his Guardian Ad Litem, C. A. Gray, Respondent, v. Raymond BARNES, Bradley E. Pou, Morgan F. Livingston, James C. DeLoach, E. D. Bessinger, 11, Mrs. Elizabeth Smoak, and Reichhold Chemicals, Incorporated, of whom James C. DeLoach and Reichhold Chemicals, Incorporated, are Appellants. |
P. Frank Haigler, O. Harry Bozardt, Jr., Orangeburg, J. Edwin Belser, Columbia, for appellant.
Kearse, Kemp & Rhoad, Bamberg, Bryant & Fanning, Orangeburg, for respondent.
This is an action for damages commenced by Robert M. Gray, by his guardian ad litem, for injuries sustained by him when the automobile in which he was riding was involved in an accident on U.S. Highway 321, approximately one-half mile south of the Town of Norway in Bamberg County. The defendant, Mrs. Elizabeth Smoak, was eliminated by consent of counsel and at the conclusion of all the testimony, the Court granted a directed verdict as to the defendant, Morgan F. Livingston. The jury returned a verdict in favor of Respondent for $25,000.00 actual damages against the remaining defendants. Timely motions for nonsuit was directed verdict were refused, and after the jury's verdict, motions for judgment n. o. v. and for a new trial were overruled.
Defendants, James C. DeLoach and Reichhold Chemicals, Incorporated, hereinafter referred to as Appellants, now appeal, contending that the Court erred in refusing their motions for the reason that the evidence was insufficient to establish negligence on the part of Appellants, that the only reasonable inference to be drawn from the evidence was that the sole negligence of others caused the accident and Appellants' act of negligence, if any, did not proximately contribute to Respondent's injuries, and that there was sufficient evidence of negligence on the part of Respondent to raise a jury issue of contributory negligence.
The question of whether or not there was error in refusing the motions of the Appellant for a nonsuit, directed verdict, judgment n. o. v., and alternatively for a new trial, requires us to consider the testimony and the reasonable inferences to be drawn therefrom in a light most favorable to the Respondent. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. However, if the evidence is susceptible of only one reasonable inference, the question is no longer one for the jury but one of law for the Court. Green v. Bolen, 237 S.C. 1, 115 S.E.2d 667; Matthews v. Porter, 239 S.C. 620, 124 S.E.2d 321.
Respondent, 15 years old at the time of injury, was a guest passenger riding on the left side in the back seat of a 1955 Oldsmobile, driven by the defendant, E. D. Bessinger, II. Two other teenagers were also passengers in the Bessinger car, one of whom received fatal injuries in the accident. All of the occupants of the Bessinger car, with the exception of the driver, were asleep. The collision occurred between the crests of 2 hills which are approximately 2600 feet apart on a straight stretch of U.S. Highway 321, approximately one-half mile south of Norway, S.C., at approximately 4 A.M., Sunday morning, February 19, 1962. Highway 321 at this point is paved to a width of 24 feet with 11 foot shoulders on each side, making the entire roadway 46 feet in width.
Defendants Raymond Barnes and Bradley E. Pou were drivers of a pickup truck and a stake body truck respectively. The pickup was pulling the stake body truck by means of a claim. After the two trucks had passed through Bamberg, S.C., proceeded north on U.S. Highway 321, but before reaching Norway, S.C., they ran together and the bumpers became 'hung up.' The two men attempted, but failed, to clear the highway by pulling into a dirt road to their left on the west side of the highway. The left rear wheel of the pickup truck was approximately 2' 10" off the paved portion of the highway and the stake body truck, which was approximately 20' 6" long and 7' 2" wide, was on the highway at an angle completely blocking the lane in which Respondent was traveling and partially blocking the northbound lane toward Norway. Shortly thereafter, James C. DeLoach, an employee of Reichhold Chemicals, Incorporated, approached the scene driving a tractor-trailer truck owned by Reichhold Chemicals, Incorporated, and loaded with formaldehyed. DeLoach was proceeding in a northerly direction on Highway 321 toward Norway when he stopped on the paved portion of the highway approximately 30-35 feet south of the stake body truck. After turning on his blinker lights, DeLoach attempted to help clear the highway of the other two trucks. Moments later the vehicle in which Respondent was a passenger appeared over the crest of the hill and, despite the efforts of DeLoach and Barnes to flag it down, struck the right rear of the stake body truck and collided headon with Appellants' tanker truck, the front of the passenger vehicle being driven under the front bumper of the truck and the metal so crushed together as to make it difficult to separate the two.
James C. DeLoach and Reichhold Chemicals, Incorporated, being the only Appellants, there is no question before this Court of negligence on the part of the other defendants, and our inquiry thereabout will be confined to actions of Appellants only. Section 46-481, Code of Laws of South Carolina 1962, reads as follows:
'Upon a highway outside of a business or residence district no person shall stop, park or leave standing any vehicle whether attended or unattended, upon a paved or main-traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of such highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway.
'This section shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.'
In an action for damages arising out of collision with a vehicle standing on the highway, the burden of proving the necessity for stopping a vehicle on the maintraveled portion of the highway, within the meaning of the aforesaid statute regulating stops on the highway is on the person who makes such stop. Ayers v. Atlantic Greyhound Corp., 208 S.C. 267, 37 S.E.2d 737, and Howey v. Jordan's Inc., 223 S.C. 71, 74 S.E.2d 216. When it is necessary for a motorist to stop his vehicle along the road, he has the duty, where it is reasonably possible, to drive until he finds a space to stop off the traveled portion of the road. LaFlamme v. Lewis, 89 N.H. 69, 192 A. 851. If there is sufficient space for stopping off the traveled portion of the highway or if there is a driveway or side road near, and the stopping motorist is able to move his vehicle into that area, he may be charged with negligence in failing to do so. Suber v. Smith, 243 S.C. 458, 134 S.E.2d 404.
Appellant DeLoach testified that he stopped on the paved portion of the highway in the right or eastern lane rather than parking on the shoulder for the reason that he did not believe the shoulder would hold up under his heavily loaded truck as it had been raining for several days. He further testified that he was prevented from passing the scene as a portion of his lane was blocked by the stake body truck and there was a roadside park sign on the shoulder at that spot.
The shoulder, according to the testimony of C. D. Campbell, a District Engineer with the State Highway Department was constructed so as to carry any legal load on the highway. The roadside park sign on the eastern shoulder is 6' 10" from the paved surface. The distance the stake body truck blocked the northbound lane is in dispute. The stake body truck was described as being 20' 6" long and 21 feet long. Defendant Barnes testified that the left frontwheel was resting off the paved portion of the highway. DeLoach testified that approximately 8 feet of the pavement on his side was blocked whereas defendants Pou and Barnes testified the stake body truck was little over the center line. Barnes stated it was 'something like' 2 feet over the center line. There is some difficulty in ascertaining the precise angle at which the stake body truck rested on the highway. However, even if we use the estimate of Appellant DeLoach, there would be approximately 4 feet of pavement and 6'...
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