Greene v. Miller, C. A. 1260.

Decision Date15 July 1953
Docket NumberNo. C. A. 1260.,C. A. 1260.
Citation114 F. Supp. 150
CourtU.S. District Court — District of South Carolina
PartiesGREENE v. MILLER et al.

Thomas H. Pope and C. E. Saint-Amand, Newberry, S. C., for plaintiff.

Whaley & McCutchen, Columbia, S. C., L. Marion Gressette, St. Matthews, S. C., for defendants.

WYCHE, Chief Judge.

This action for wrongful death was commenced by Ruth Greene, as Administratrix of the Estate of George B. Greene, deceased, pursuant to the provisions of Sections 10-1951 to 10-1954, Code of Laws of South Carolina, 1952, and pursuant to the subrogation provisions of the South Carolina Workmen's Compensation Act. At the time of his death, the deceased was a covered employee within the terms of the South Carolina Workmen's Compensation Act, and National Surety Corporation, as carrier, is subrogated to the extent of the payments made pursuant to such Act. Plaintiff brings this action for the benefit of the surviving widow and children of the deceased, and for the benefit of National Surety Corporation, as subrogee.

On the 18th day of June, 1951, at about three o'clock p. m., plaintiff's intestate was run over and killed by a Mack tractor and trailer belonging to the defendant O. Alex Hicklin, at a point on South Carolina Highway 20-12, approximately one mile east of Blairs, South Carolina.

The defendant Heck Young is in default.

With the consent of counsel for the defendants, plaintiff's motion to dismiss as to the defendant National Indemnity Company was granted. At the conclusion of plaintiff's case, I granted plaintiff's motion to amend the complaint to conform to the proof so as to allege gross negligence and gross carelessness.

Just before the concluding arguments and with the consent and in the presence of counsel for the parties, I viewed the scene and the approaches to it.

In compliance with Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C.A., I find the facts specially and state my conclusions of law thereon in the above cause as follows:

Findings of Fact

On June 18, 1951, plaintiff's intestate George B. Greene, then thirty-seven years of age, and in good health, was driving an empty truck, unaccompanied by any passengers, toward Blairs, South Carolina, along paved South Carolina highway 20-12, and stopped it on the right-hand edge of the paved highway approximately one mile east of Blairs, South Carolina.

Greene dismounted from his truck and was standing by the left front fender with a lug wrench in his hand when two trucks approached him from opposite directions. He waved the lug wrench in both directions, evidently attempting to stop both trucks. The truck belonging to the defendant Hicklin, and hereinafter referred to as the Miller truck, was approaching with a load of gravel from the direction of Blairs, South Carolina, and going in the direction of Newberry, South Carolina. A pulpwood truck, belonging to the defendant Heck Young and driven by Young's minor son, was approaching from the direction of Newberry, South Carolina, and traveling toward Blairs, South Carolina; the latter was being driven at a high and excessive rate of speed, was without brakes, and was zigzagging across the highway.

As the driver of the Miller truck approached a bridge across Rocky Creek, he observed Greene and his parked truck, which was parked a distance of four hundred, forty-six feet beyond the Rocky Creek bridge in the direction of Newberry. The driver of the Miller truck saw Greene turn in the opposite direction and attempt to flag down the Young truck. After observing Greene and his signals, the two trucks made no attempt to stop, but continued forward with unabated speed, and the driver of the Miller truck changed gears in order to maintain his speed uphill. The Miller truck was equipped with air brakes in good condition, capable of stopping the truck in a distance of ten to fifteen feet when traveling at twenty-five miles per hour.

When the driver of the Miller truck first saw the Young truck approaching, the Young truck was traveling at a rate of speed between fifty and sixty miles per hour; at that time the two approaching trucks were the same distance from the parked Greene truck; and they passed the Greene truck at the same time, the pulpwood truck passing it on the right and the Miller truck passing it on the left. Just prior to passing the Greene truck, the pulpwood truck veered to its left, and apparently was going to meet the Miller truck head-on. The driver of the Miller truck did not apply his brakes, slow down, or drive on the shoulder; he continued forward because as he said he had "the right-of-way". Greene was apparently confused and realized his peril; he attempted to get out of the path of the two approaching trucks. Suddenly the pulpwood truck veered back to its right, crossed the ditch and rode the steep embankment like a motorcycle on a Hippodrome, thereby cutting off Greene's escape on that side. Greene attempted to avoid being run down by the pulpwood truck and in doing so was run over and killed by the Miller truck. When the Miller truck stopped it was eighty-four feet up the hill from the dead body of Greene, and the pulpwood truck was three hundred feet down the hill from the dead body of Greene.

Plaintiff introduced in evidence a very comprehensive plat of the section of roadway in question. The paved portion of the road is twenty feet wide, the shoulders on either side of the road are approximately three or four feet wide, the ditches along the road are shallow and constant and the embankments beyond the ditches are high and steep. Greene's truck, as stated before, was parked a distance of four hundred, forty-six feet in the direction of Newberry from the bridge across Rocky Creek. The road runs downhill from the direction of Newberry, to Rocky Creek bridge, and uphill from the bridge toward Blairs. At a point on the edge of the pavement four hundred feet from the bridge (marked on the plat by a circle at the 400-foot mark) one is able to see a distance of six hundred, fifty feet toward Newberry, and a distance of eight hundred feet toward Blairs. The condition of the ditches and shoulders were unchanged from the time of this accident until the time of trial and my visit to the premises. The ditches were shallow and the shoulders were firm.

Galloway, the driver of the Miller truck, knew Greene and had seen him on the day of the accident, prior to the time of his death, at the Blairs Quarries, from which both he and Greene were hauling gravel.

From the testimony of all the witnesses, the plat and pictures illustrating the scene, the attendant physical facts and a view of the scene of the accident, I find:

(a) That Herbert Galloway, as the agent, servant and employee of O. Alex Hicklin, d/b/a Miller Trucking Company, while acting within the scope of his employment, was guilty of gross negligence in driving his truck at a speed greater than was reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, in violation of Section 46-361, Code of Laws of South Carolina, 1952; in failing to drive at an appropriate reduced speed when a special hazard existed with respect to a pedestrian, in violation of Section 46-363, Code of Laws of South Carolina, 1952; in failing to keep a proper lookout; in failing to comply with other statutes of South Carolina relative to due care; in failing to sound his horn, to apply his brakes, to stop or to take any action to avert injury to plaintiff's intestate under all the circumstances.

(b) That Rufus Young, the agent of the defendant Heck Young, while acting within the scope of his employment, was guilty of gross negligence in operating the pulpwood truck at a high, excessive and unlawful rate of speed, in operating said vehicle without proper brakes, in failing to keep a proper lookout, in failing to maintain proper control over his vehicle, and in failing to use due care, all in violation of the statutes of South Carolina.

(c) That the joint and several acts of gross negligence on the part of Herbert Galloway as agent, servant and employee of O. Alex Hicklin, d/b/a Miller Trucking Company, and of Rufus Young as agent of the defendant Heck Young, combined and concurred as the direct, proximate and efficient cause of the injuries to, and death of, plaintiff's intestate George B. Greene.

Plaintiff's intestate George B. Greene was not guilty of any negligence which contributed as a proximate cause to his death.

Plaintiff's intestate was not guilty of contributory wilfullness or contributory wantoness.

The defendant C. G. Miller is a salaried employee of the defendant O. Alex Hicklin and owns no interest in the business known as Miller Trucking Company.

Plaintiff's intestate was an able-bodied white man, thirty-seven years of age, gainfully employed for more than a year prior to his death at an average weekly wage of Forty-Four and 00/100 ($44.00) Dollars, and had a life expectancy of 31.75 years.

Greene died intestate, survived by his widow and two minor children, Patricia Levada Greene, now aged thirteen, and Terry Dean Greene, now aged nine; and the said widow and two minor children were entirely dependent upon the said George B. Greene for their maintenance and support.

As a result of the death of their husband and father, they have suffered actual damages in the sum of Forty Thousand ($40,000) Dollars, out of which sum the subrogee, National Surety Corporation, is entitled to reimbursement for the amount...

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4 cases
  • Brooks v. United States
    • United States
    • U.S. District Court — District of South Carolina
    • September 15, 1967
    ...359, 98 S.E.2d 798; Elliott v. Black River Elec. Co-Op. (1958), 233 S.C. 233, 265, 104 S.E.2d 357, 74 A.L.R.2d 907; Greene v. Miller (D.C.S.C.1953), 114 F.Supp. 150, 155; Hardy v. United States (D.C.S.C.1960), 187 F.Supp. 756, Of the elements of damages thus specified, only "pecuniary loss"......
  • Hardy v. United States
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    ...society and the loss of his experience, knowledge and judgment in managing his own affairs and those of his beneficiaries. Greene v. Miller, D.C., 114 F.Supp. 150; Mishoe v. Atlantic C. L. R. Co., 186 S.C. 402, 197 S.E. 9. Applying the foregoing principles of law and statutes to the facts i......
  • Sanders v. Green
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    ...of a motorist is to keep a sharp lookout ahead to discover the presence of those who might be in danger, * * *." Greene v. Miller, (D.C.S.C.) 114 F.Supp. 150, 1955 (1953). It has frequently been held in many jurisdictions that a motorist who operates his vehicle during the night-time must t......
  • Eastern Brick and Tile Co. v. United States, Civ. A. No. 66-449.
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    • U.S. District Court — District of South Carolina
    • February 29, 1968
    ...S.E.2d 133; Jones v. Atlanta-Charlotte Air Line R. Co. (1951) 218 S.C. 537, 546-551, 63 S.E.2d 476, 26 A.L.R.2d 297; Greene v. Miller (D.C.S.C. 1953) 114 F.Supp. 150, 155. This principle, however, "constitutes no exception to the general doctrine of contributory negligence, and does not per......

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