Haynes v. Kay

• Decision Date: 28 August 1918
• Docket Number: 10075.
• Parties: HAYNES v. KAY.
• Court: South Carolina Supreme Court

96 S.E. 623

111 S.C. 107

HAYNES v. KAY.

No. 10075.

Supreme Court of South Carolina

August 28, 1918

Appeal from Common Pleas Circuit Court of Anderson County; I. W Bowman, Judge.

Action by S. A. Haynes against M. A. Kay. Verdict for plaintiff, and from an order granting defendant's motion for a new trial plaintiff appeals. Order reversed, and cause remanded for judgment on the verdict.

A. H Dagnall, of Anderson, for appellant.

Bonham Watkins & Allen, of Anderson, for respondent.

HYDRICK J.

Plaintiff sued to recover actual and punitive damages for the killing of his horse. While the horse was at large on the streets of Honea Path, it was struck and killed by defendant's automobile, which was being driven by defendant's son a boy about 10 years old. Plaintiff charged negligence and recklessness in exceeding the speed limit prescribed by the state and town law, in allowing the automobile to be driven by the boy, in violation of an ordinance of the town prohibiting the operation of motor vehicles by persons under 15 years of age, and in failing to prevent the collision after the horse was seen by the driver. Defendant denied the charge of negligence and willfulness and alleged that the injury was caused by plaintiff's contributory negligence in allowing his horse to stray upon the streets in violation of an ordinance of the town and the law of the state. The testimony as to speed was conflicting. According to plaintiff's witnesses, it exceeded the limit to the point of being reckless, under the circumstances. According to defendant's witnesses, it was within the limit, and may have been found to be within the limits of due care, or only negligence, under the circumstances. There was no dispute in the evidence as to plaintiff's negligence in allowing his horse to be at large, for it was in violation of the law of both the state and the town. Nor was there any dispute as to defendant's negligence in allowing his son to drive the automobile, for that was in violation of the town law. But the evidence was conflicting as to whose negligence was the proximate cause of the injury, and as to whether plaintiff's negligence was only a condition, or remote cause, and not a proximate or contributing cause thereof. The court instructed the jury that, before they could find for plaintiff, they must be satisfied that defendant's negligence was the proximate cause of the injury, and that, if they should find that plaintiff's negligence was a proximate contributing cause thereof, he could not recover, unless they should find that the injury was caused by defendant's recklessness or willfulness; but, in that case, defendant would be liable, not only for the actual damages, but for punitive damages, such as they might think proper to award, because plaintiff's contributory negligence would be no defense to a willful or wanton injury; that, if plaintiff was negligent, and defendant, by the exercise of ordinary care, could have avoided the consequences of his negligence, and failed to do so, his failure would make him liable, if it was the proximate cause...