Grier v. Cornelius

• Citation: 148 S.E.2d 338,247 S.C. 521
• Decision Date: 11 May 1966
• Docket Number: No. 18504,18504
• Parties: Willie James GRIER, Appellant, v. Cherosse CORNELIUS and Jack Cornelius, Jr., a minor over the age of Fourteen(14) Years, Respondents.
• Court: United States State Supreme Court of South Carolina

Page 338

148 S.E.2d 338

247 S.C. 521

Willie James GRIER, Appellant, v. Cherosse CORNELIUS and Jack Cornelius, Jr., a minor over the age of Fourteen(14) Years, Respondents.

No. 18504.

Supreme Court of South Carolina.

May 11, 1966.

Lowell W. Ross, of Rogers, McDonald & Ross, Columbia, for appellant.

Joseph L. Nettles, Columbia, for respondents.

MOSS, Chief Justice.

Willie James Grier, the appellant herein, instituted this action to recover damages for personal injuries alleged to have been sustained by reason of the negligence of Cherosse Cornelius and Jack Cornelius, Jr., the respondents herein.

The appellant alleged in his complaint that on November 17, 1961, while he was riding as a passenger in a 1952 Chrysler automobile owned by Cherosse Cornelius, which was her family car, and driven by Jack Cornelius, Jr., her son, and her agent and servant, the said automobile left the road and collided with a tree near the intersection of Colonial Drive and Lorick Avenue in the City of Columbia. It was further alleged that the said automobile was not equipped with adequate and proper brakes and there was a failure to inspect the same at proper intervals for the purpose of ascertaining its proper mechanical condition and to keep the brakes on said automobile in a proper state of repair, and to make regular and periodic inspection of the brakes and to have them inspected by persons competent to do so, all of which is charged to be in violation of the statutory laws of this State and the ordinances of the City of Columbia.

The answer of the respondents contained a general denial and, by way of further defense, alleged that on the date in question the collision occurred as a result of the sudden failure of the brakes on the automobile.

Immediately before the upset, Jack Cornelius, Jr., was driving the automobile in a northerly direction on Colonial Drive. As he approached the intersection of Colonial Drive and Lorick Avenue he applied the foot brake in an effort to slow the vehicle so that he could make a right angle turn from Colonial Drive onto Lorick Avenue, which was necessitated by a barricade in Colonial Drive at the bottom of a hill where there was a bridge under construction. The brake pedal went all the way to the floor with no effect on the speed of the vehicle. The driver then used the emergency or hand brake, but it also failed and did not slow the speed of the automobile. An effort was made by the driver, when the brakes failed, to use the reverse gear as a means of stopping the forward motion of said automobile. When all of these efforts failed, the driver being unable to turn into Lorick Avenue, drove the automobile on the western side of Colonial Drive in order to avoid going into the creek. It was then that the automobile collided with a tree.

Jack Cornelius, Jr., testified that the automobile had last been checked and repaired about thirty days prior to the day of the upset. On the day that the upset or collision occurred, he and the respondent had been working in St. Matthews and were returning from St. Matthews to Columbia. Cornelius testified that when he reached West Columbia he began stopping at traffic lights and that the brakes of the automobile worked properly. He then crossed the Gervais Street bridge to other lights, at which he stopped without there being any difficulty with the brakes. Upon reaching Academy Way and Colonial Drive he again stopped at a traffic light. After the light changed he proceeded in a northerly direction on Colonial Drive, where the brakes failed for the first time, as is described above.

A witness, who had approximately twenty years experience in the automobile repair field and five years experience in making appraisals of physical damage to automobiles, testified that pursuant to a request he had inspected the 1952 Chrysler automobile to see if there was any brake failure or indication of brake failure. As a result of his inspection he found a badly leaking left rear wheel cylinder. He testified that in order to stop an automobile by means of hydraulic brakes pressure is applied on the brake pedal forcing fluid of the type which had leaked out into the wheel cylinder causing it to expand at either end, thereby moving the brake shoes which stop the wheels. When the fluid had leaked out of the cylinder it resulted in insufficient pressure to cause the wheels to stop. This witness also testified as follows:

'Q. Assume that an automobile had been driven on a particular day some hundred miles, in the course of which it had made a number of stops without any difficulty and with adequate brake pedal; assume further that on a particular occasion, at the crest of a hill, the brakes were applied and the pedal goes all the way to the floor; assume further that you found the condition in the brake which you found yourself. Now, add to what I have asked you to assume the condition which you know you found these brakes in. Do you have an opinion as to whether or not this was a sudden failure or one which occurred over a long period of time?

'A. Well, my opinion is that it was a sudden failure.

'Q. Would there have been any way for anybody to tell that this failure was going on by visual inspect, or would occur?

'A. Possibly a seepage in there would have indicated it, if you had disassembled the wheel.

'Q. If you had disassembled the whole wheel?

'A. If you had pulled the brake drum off, yes.

'Q. Do people usually do that hunting for leaks?

'A. Not unless they have some indication of trouble somewhere.

'Q. That's right. Unless they have some indication, they don't take the whole wheel to pieces?

'A. That's right.'

'Q. Mr. Brown, is the breaking down of wheel cylinders part of what we regard as normal periodic maintenance of an automobile?

'A. I wouldn't consider it so. Visual inspection for indication of leaks should be a periodic thing.

'Q. And if there is no indication of a leak, you don't tear down all of the wheels, do you? People don't do that periodically, do they?

'A. In my opinion, it would be best not to, unless there was some visual reason for it.'

This same witness testified that when the massive leak occurred in the left rear wheel brake cylinder, it had the effect of rendering the entire hydraulic system inoperative. The kind of leak that he found is what he called a 'blown cylinder' and could have occurred at any time. The witness said that 'a new car can blow a wheel cylinder, or it can be ten years before it blows.' The cylinder is inside the wheel assembly of the automobile. Inside the cylinder is a small seal or washer, the condition of which cannot be detected by ordinary visual inspection from the outside. According to this witness, entry into the cylinder where inspection can be made is a mechanic's job.

This case came on for trial at the 1964 October term of the Court of Common Pleas for Richland County, before The Honorable C. Bruce Littlejohn, Presiding Judge, and a jury. At the close of all the testimony, the appellant made a motion for a direction of verdict as to liability on the following grounds: (1) that the evidence was indisputable that the appellant was not within the 'Guest Statute'; (2) that the only reasonable inference to be drawn from the evidence was the brakes on respondents' automobile were inadequate and defective in violation of Sections 46--561, 46--566, 46--568 and 46--569 and 46--511 of the Code, and Sections 20--115 and 20--116 of the ordinances of the City of Columbia and that the respondents were consequently guilty of negligence as a matter of law. The trial Judge granted the appellant's motion with respect to the 'Guest Statute' but refused to grant his motion as to the respondents being negligent as a matter of law. The trial Judge refused appellant's request to charge the jury 'that the burden is on the defendant to excuse himself from a violation of the statute.' The jury returned a verdict in favor of the respondents. The appellant then made a motion for judgment Non obstante veredicto on the issue of liability and a new trial on the question of damages or, in the alternative, for a new trial as to all issues. That motion was made upon the grounds (1) that the trial Judge erred in refusing to direct a verdict in favor of the appellant on the issue of liability and submitting to the jury only the question of damages because the only reasonable inference to be drawn from the evidence was that the respondents had violated the statutes above mentioned and consequently were negligent as a matter of law, and that the damages sustained by appellant were directly and proximately caused by defective brakes on respondents' automobile; (2) that the trial Judge erred in charging the jury on unavoidable accident and sudden emergency; (3) that the trial Judge erred in charging the jury that the respondents were required to inspect and repair the vehicle involved as would an ordinary reasonable person; and (4) that the trial Judge erred in refusing to charge the jury 'that the burden is on the defendant to excuse himself from a violation of the statute.' The trial Judge refused to grant this motion and this appeal ensued.

There are two basic views with regard to the alleged violation of an applicable statute in cases predicated upon negligence. One view is that violation of a statute alleged to be applicable constitutes Prima facie evidence of negligence. The view which has been adopted in South Carolina is that the violation of an applicable statute is negligence Per se, and whether or not such breach contributed as a proximate cause to plaintiff's injury is ordinarily a question for the jury. Grainger v. Nationwide Mutual Ins. Co., S.C., 147 S.E.2d 262. The statute allegedly violated in this case is what is commonly referred to as the brake statute. Our statute, which is similar to those of other jurisdictions which have adopted the Uniform Act Regulating Traffic is found in Sections 46--561, et seq. of the Code...