Gunnels v. Roach, 18128

Decision Date03 December 1963
Docket NumberNo. 18128,18128
Citation243 S.C. 248,133 S.E.2d 757
PartiesStephen GUNNELS, by his Guardian ad Litem and natural mother, Hazel Gunnels, Respondent, v. Studard ROACH, Appellant.
CourtSouth Carolina Supreme Court

Watkins, Vandiver, Freeman & Kirven, Anderson, for appellant.

G. Ross Anderson, Jr., Anderson, for respondent.


This is an action for personal injuries sustained by an eight year old boy when he ran from between cars parked diagonally at a curb and into the right rear door of a passing automobile driven by the defendant. The latter appeals from an adverse judgment, charging that the court erred in submitting the issue of liability to the jury. The sole question on this appeal is whether the evidence, in the light most favorable to plaintiff, is sufficient to support an inference that the defendant was guilty of actionable negligence in any of the particulars alleged in the complaint.

The accident occurred as defendant was passing Crayton Manor Apartments in the City of Anderson. These multiple apartment buildings were on the right of the street in the direction in which he was traveling. A number of cars were parked diagonally at the curb in front of the apartments. Plaintiff and another small boy were playing tag between these cars and the buildings. The parked cars blocked defendant's view of the children and blocked their view of his approaching automobile. At the critical instant, plaintiff touched the other boy and, in attempting to escape being tagged back, dashed across the sidewalk and curb, between parked cars and into the said of defendant's automobile, which he did not see prior to the impact. As already stated, the point of impact was on the right rear door of defendant's four door sedan.

A passenger in defendant's automobile testified that he happened to be looking toward the right and saw the boy as he darted out, about a second before the collision, stating, 'It was just like a flash. You couldn't have told whether it was a girl or a boy.'

The defendant did not see plaintiff prior to the accident. He testified that about the time the passenger hollered 'lookout' he felt an impact, applied his brakes and stopped his car within about two car lengths.

The foregoing facts are undisputed and clearly demand reversal, unless that result is changed by two additional items of testimony to which the trial judge gave controlling weight.

Plaintiff testified that he was about a yard from the road when he was 'hit.' Counsel, apparently, contends that this testimony tends to establish that defendant was negligent in driving off of the main traveled portion of the street. While the street in front of the apartment buildings is wider than it is some distance beyond them, it is no more so than is necessary to accommodate diagonal parking at the curb and two way traffic. The street is hard surfaced to the curb with nothing to separate the area in which parking is permitted from the remainder of it. These facts are clearly shown by a number of photographs in evidence and there is no testimony to the contrary. Plaintiff simply could not have run into defendant's passing automobile without emerging from behind the parked cars, and when he did so, he was in the street. His contrary testimony is without probative value.

Furthermore, the complaint alleges that plaintiff was struck by the automobile when he 'attempted to cross the road.' It contains no allegation that defendant was negligent in driving off of the traveled portion.

The other item of testimony relied upon is that of plaintiff's mother as to a statement made to her by the defendant after the accident. 'He said that he was actually responsible for it, that he was looking off of the road, and that the man that was driving along with him told him that a little boy was there, that they had hit a little boy.' Despite defendant's denial,...

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15 cases
  • Davis v. Tripp
    • United States
    • Court of Appeals of South Carolina
    • December 6, 1999
    ...357, 137 S.E.2d 273 (1964); Alston v. Blue Ridge Transfer Co., 308 S.C. 292, 417 S.E.2d 631 (Ct.App.1992); see also Gunnels v. Roach, 243 S.C. 248, 133 S.E.2d 757 (1963) (the collision could not have been avoided even if the defendant had seen the plaintiff at the instant he became These pr......
  • Kapuschinsky v. United States, Civ. A. No. 7646.
    • United States
    • U.S. District Court — District of South Carolina
    • January 3, 1966
    ...between the government's acts or omissions and plaintiff's injury in the sense of the guidelines set forth in Gunnels v. Roach, 243 S.C. 248, 133 S.E.2d 757, 759. Remaining to be discussed is the question of whether or not such constitutes negligence as a matter of It goes without saying th......
  • Herring v. Boyd
    • United States
    • United States State Supreme Court of South Carolina
    • February 4, 1965
    ...received by a child who enters the highway so suddenly that its driver cannot stop or otherwise avoid injuring him. Gunnels v. Roach, 243 S.C. 248, 133 S.E.2d 757; Watson v. Aiken, 243 S.C. 368, 133 S.E.2d 833; Williams v. Clinton, 236 S.C. 373, 114 S.E.2d 490; Critzer v. Kerlin, 231 S.C. 3......
  • Kennedy v. Carter, 18613
    • United States
    • United States State Supreme Court of South Carolina
    • March 2, 1967
    ...his complaint, and that such was a proximate or a concurring proximate cause of the injury sustained by the respondent. Gunnels v. Roach, 243 S.C. 248, 133 S.E.2d 757. It is a well established rule of law in passing upon the exceptions of the appellant to the refusal of the trial judge to g......
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