Green v. Bolen

Decision Date14 July 1960
Docket NumberNo. 17683,17683
Citation237 S.C. 1,115 S.E.2d 667
CourtSouth Carolina Supreme Court
PartiesWoodrow GREEN, Respondent, v. John BOLEN, Appellant.

Thomas R. Wolfe, Julian S. Wolfe, Fred R. Fanning, Jr., Orangeburg, for appellant.

Marshall B. Williams, Orangeburg, for respondent.

MOSS, Justice.

This action was brought by Woodrow Green, the respondent herein, against John Bolen, the appellant herein, to recover damages for personal injuries sustained on November 18, 1958, by the backing of a truck owned by the appellant and operated at the time by his agent. The complaint alleges that the respondent was an employee of one Fogle, who was engaged in a timber-logging operation in Pocataligo Swamp in Clarendon County, South Carolina, and the appellant, a road builder, was constructing an extension of a log road into the swamp under a contract with Fogle. It appears that the appellant had previously constructed a log road approximately 680 feet in length, and that Fogle had set up his logging operation at a point on the road approximately 600 feet in the swamp, which area the appellant had prepared and filled to a greater width than the other portions of the road in order that such area could be used for log loading. It is alleged in the complaint that it was necessary for the logging road to be extended further into the swamp area, and that the appellant began hauling dirt from the hill into the swamp for this purpose. In hauling the dirt along the logging road, the trucks of the appellant passed through the log loading area where a rig tree was located on the opposite side of the road from the log skidder, and a cable ran from the rig tree across the road to the skidder. When the logs were being pulled out of the swamp, the cable would be tight and approximately twenty feet above the road. When logs were not being pulled out of the swamp, the cable would be slack and would lie in the road.

The duties of the respondent required him to be in the loading area and log bed where he was sawyer and flagman, transmitting signals from the log crew in the woods to the skidder operator. The respondent was struck by a truck of the appellant as he was giving signals to the skidder operator from the loading area. The respondent was standing with his back in the direction from which the truck of the appellant was being backed along the road.

The complaint alleges that while the respondent was performing his duties as aforesaid, that an employee of the appellant, while backing a dump truck along the road being extended, left the usual path of travel and backed into the loading area, knocking the respondent down and running over him with the right rear dual wheels of said truck. The complaint alleges that as a result of the operation of said dump truck in a negligent, careless, reckless, willful and wanton manner, the respondent's left thigh and left leg bone from the knee to the ankle were crushed. He had multiple rib fractures on the left side, internal injuries, and a crushed left kidney, with numerous abrasions and bruises about his chest, abdomen and face. The complaint alleges that the injuries sustained by the respondent were permanent and disabling.

The answer of the appellant contained a general denial and also alleged as a defense that the injury to the respondent was caused and occasioned by his sole and contributory negligence, carelessness, recklessness and wantonness.

This case was tried before the Court of Common Pleas for Orangeburg County and resulted in a verdict for the respondent for actual damages. At appropriate stages of the trial, the appellant moved for a nonsuit and a directed verdict on the grounds, (1) That the testimony was insufficient to require the submission of the issue of negligence on the part of the driver of the truck to the jury; (2) That the injury to the respondent was due to and caused by his own negligence; and (3) That the only reasonable inference that can be drawn from the testimony is that the respondent was guilty of contributory negligence. These motions were refused. This case was submitted to a jury and a verdict was returned in favor of the respondent for actual damages. After the verdict was returned, the appellant moved for judgment non obstante veredicto, or failing in that, for a new trial upon numerous grounds. The motion was refused and this appeal followed.

The first question for determination is whether the trial Judge erred in refusing the motions of appellant for a nonsuit, directed verdict and judgment non obstante veredicto, and, alternatively for a new trial, upon the grounds heretofore stated.

The question of whether or not there was error in refusing the motions of the appellant for a nonsuit, directed verdict, judgment non obstante veredicto, 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. Padgett v. Colonial Wholesale Distributing Co., 232 S.C. 593, 103 S.E.2d 265; Critzer v. Kerlin, 231 S.C. 315, 98 S.E.2d 761. If more than one reasonable inference can be drawn from the evidence, the case must be submitted to the jury. Scott v. Southern Ry. Co., 231 S.C. 28, 97 S.E.2d 73. 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. Cannon v. Motors Ins. Corp., et al., 224 S.C. 368, 79 S.E.2d 369. Ordinarily, contributory negligence is an issue for the jury; Young, et al. v. Parker, 224 S.C. 35, 77 S.E.2d 288; and it rarely becomes a question of law for the Court. Mock v. Atlantic Coast Line R. Co., et al., 227 S.C. 245, 87 S.E.2d 830.

In Peagler v. A. C. L. Railroad Co., et al., 234 S.C. 140, 107 S.E.2d 15, 17, we said:

'It is a well established rule of law that in passing upon the appellants' motions below, it is incumbent upon this Court to review the testimony, construing it in the light most favorable to the respondent. Barnett v. Charleston & Western Carolina Ry. Co., 230 S.C. 525, 96 S.E.2d 555, and Brown v. Powell, 198 S.C. 403, 18 S.E.2d 212. It has also been held that if the only reasonable inference to be drawn from all the testimony is that the negligence of the complainant is a direct and proximate cause of his injury and damage, or that the negligence of the complainant contributed as a direct and proximate cause, then it would be the duty of the trial Judge to order a nonsuit or direct a verdict against such plaintiff. Sewell v. Hyder, 229 S.C. 480, 93 S.E.2d 637.

'In the case of Field v. Gregory, 230 S.C. 39, 94 S.E.2d 15, we quoted with approval from the case of Harrison v. Atlantic Coast Line R. Co., 196 S.C. 259, 13 S.E.2d 137, 141, the following:

"It is firmly established in this jurisdiction that if the inferences properly deductible from the evidence are doubtful, or if they tend to show both parties guilty of negligence or wilfulness, and there may be a fair difference of opinion as to whose act produced the injury complained of as a direct and proximate cause, then the question must be submitted to the jury. Ford v. Atlantic Coast Line Railroad Co., 169 S.C. 41, 168 S.E. 143."

The evidence shows that the respondent was employed by one Fogle as a sawyer and a flagman. At the time he was struck and run over by the truck of the appellant, he was flagging the skidder by relaying to such skidder signals given to him by men in the swamp from which logs were being pulled. The respondent was standing in a loading area or log yard where the roadway was twenty-two feet wide. There is testimony that he was some two feet outside of the usual traveled portion of an eleven foot road over which the truck of the appellant was traveling. There is testimony that the driver of appellant's truck saw the respondent standing on the left side of the road as he was driving the truck loaded with dirt. At this time the truck driver was driving his truck forward and he reached what is described as the turn around point and began to back the truck through the loading area, where the respondent was engaged in his duties as a flagman, with his back in the direction from which the truck was backing. There is testimony that the truck driver was supposed to get a signal from the skidder operator before backing the truck through the loading area, but on the occasion when the respondent was injured, no signal was given by the skidder operator before the truck driver began to back through the loading area, and the skidder operator never saw the truck until after it struck the respondent. The truck driver testified that he had a signal to proceed in his backward movement. There is also testimony that the truck, in backing through the loading area, left the path of travel usually used in the backward movement, and backed into the area where the respondent was working, and it was there that the truck ran over him. It was also testified that if the truck had stayed in the usual road traveled by it, the respondent would not have been struck. It was also testified that the driver of the truck backed the same down the road and into the loading area while observing only the left side of the road as he performed such backing operation. The respondent, at the time of such backing movement, was on the opposite side of the road from the side of the road being observed by the truck driver, and the presence of the respondent in the loading area, and on the opposite side of the road from that being observed by the truck driver, was known to said truck driver.

There is evidence from which the jury could have concluded, as it probably did, that the driver of the truck of appellant, while backing such truck into the area where the logging crew was pulling logs from the swamp, and while the respondent was signaling the skidder operator, seeing the cable attached to the log taut some twenty feet above the road, proceeded the backing movement through the area...

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