Gue v. Wilson

• Decision Date: 18 October 1910
• Citation: 69 S.E. 99,87 S.C. 144
• Parties: GUE v. WILSON.
• Court: South Carolina Supreme Court

69 S.E. 99

87 S.C. 144

GUE v. WILSON.

Supreme Court of South Carolina

October 18, 1910

Appeal from Common Pleas Circuit Court of Orangeburg County; Ernest Gary, Judge.

Action by Benjamin P. Gue against Durham S. Wilson. From a judgment for plaintiff, defendant appeals. Affirmed.

Wolfe & Berry, for appellant. Raysor & Summers and A. H. Moss, for respondent.

JONES C.J.

This appeal is from verdict and judgment for $1,000 in favor of plaintiff against defendant in an action at common law to recover damages for injuries to plaintiff's person and his horse and buggy, resulting from a collision on a bridge over Edisto river on the public highway with an automobile alleged to have been negligently and recklessly operated by defendant. A motion for new trial was made and refused.

The first and third exceptions assign error in refusing new trial, because there was evidence neither of negligence nor of willfulness. As there was no motion for nonsuit, nor request to direct verdict on either ground, the exceptions are not properly before the court. Jennings v. Edgefield Mfg. Co., 72 S.C. 419, 52 S.E. 113; Horn v. Railway Co., 78 S.C. 73, 58 S.E. 963; Entzminger v Railway, 79 S.C. 154, 60 S.E. 441; Elms v. Power Co., 79 S.C. 513, 60 S.E. 1110; Baker v. W. U. Tel Co., 84 S.C. 484, 66 S.E. 182.

We may add, however, that there was some testimony from which the jury may have inferred negligence and recklessness on the part of defendant as the cause of the injury. There was testimony for plaintiff that the bridge was about 20 feet wide and 60 feet long, with abutments of some length; that when plaintiff's horse and buggy went upon one end of the bridge, the defendant's automobile was standing noiseless at the other end; that, when the horse got near the middle of the bridge, within about 30 feet of the automobile, plaintiff put his machine in motion, with much noise and blowing the horn several times; that the horse became frightened and unmanageable, and backed to the end of the bridge, and turned upon the embankment, where the buggy was struck by the automobile, the hind wheels crushed, and plaintiff thrown out and injured to some extent; that, when the buggy was struck, defendant had driven the machine from his right to his left side, where the horse and buggy were; and that defendant could have gone by to the right, and could have stopped his machine before the collision, and that no effort was made to stop. The testimony for the defendant was to the effect that the horse did not become frightened until the machine was nearly opposite, and then seemed to be frightened at something in front, and backed or moved in front of the machine, which then drove to the left to avoid collision with the horse, and that every effort was made to avoid a collision.

The second exception is as follows: "(2) The charge of the presiding judge, taken as a whole and thus considered, is erroneous, in that it imposes upon the defendant a higher and greater degree of care in operating the automobile than 'such care as a prudent person would exercise' under the circumstances. The effect of the charge was, in substance, to instruct the jury that, in case a horse should become frightened or unmanageable, it was incumbent on the driver of an automobile to see that no injury or damage resulted to the occupants of the other vehicle. The charge is likewise open to the vice of making the automobile driver responsible for the safety of the horse-drawn vehicle and its occupants, thus imposing a higher degree of care than the law imposes in such case, especially when he used the language, "Their use should be accompanied with that degree of prudence in management and consideration of the rights of others which is consistent with their safety,' and language of similar import throughout the charge."

The charge, bearing on this subject, which we here quote, shows that the exception is not well founded: "Bear in mind that the public highway is for the public, and the man in the automobile has the right to use it, and the man with the horse has the right to use it; but neither has the right to use it to the exclusion of the other. They must each respect the rights of the other. Here is what the law books have to say: 'One...