Herring v. Boyd

• Decision Date: 04 February 1965
• Docket Number: No. 18299,18299
• Citation: 140 S.E.2d 246,245 S.C. 284
• Court: South Carolina Supreme Court
• Parties: James O. HERRING, as Administrator of the Estate of Dale Olen Herring, Respondent, v. Geneva BOYD, Appellant.

Page 246

140 S.E.2d 246

245 S.C. 284

James O. HERRING, as Administrator of the Estate of Dale Olen Herring, Respondent, v. Geneva BOYD, Appellant.

No. 18299.

Supreme Court of South Carolina.

Feb. 4, 1965.

Henderson, Salley & Cushman, Aiken, for appellant.

Williams & Johnson, Aiken, for respondent.

LEWIS, Justice.

While crossing a road or street in the Town of New Ellenton, South Carolina, Dale Herring, a child, approximately four years of age, was struck and killed by an automobile operated by the defendant.

This action was then brought by the administrator of the child's estate to recover damages for his alleged wrongful death. The complaint charged that the injuries, from which death resulted, were caused by the negligent, wilful and wanton operation of the automobile by the defendant in driving it (1) at an excessive rate of speed, (2) without keeping a proper lookout, (3) without maintaining proper control, and (4) with mechanically defective brakes. The trial resulted in a verdict for the plaintiff in the sum of $20,000.00 actual damages. The defendant has appealed from the lower court's refusal of her timely motions for a nonsuit, directed verdict, judgment notwithstanding the verdict and in the alternative, for a new trial. The exceptions present two basic questions for determination to wit:

(1) Was the evidence susceptible of the reasonable inference that the injuries sustained by the deceased proximately resulted from negligence on the part of defendant?

(2) If so, was prejudicial error committed in the charge to the jury so as to entitle the defendant to a new trial?

This accident occurred in the incorporated Town of New Ellenton, on a Sunday morning, October 15, 1961, about 11 A.M., on a State Highway which runs approximately north and south through the town. It was a clear, warm day and the defendant was driving south along the highway at the time. The highway was hard surfaced to a width of 19 feet 5 inches with dirt shoulders and very shallow drains on each side. It is intersected by streets of the town and the accident occurred on the paved roadway between Tennessee Avenue and Neal Avenue, both avenues dead-ending at the highway, Tennessee from defendant's right and Neal about a block farther south from defendant's left. The deceased lived with his family in a home located in the southwest corner of the intersection of the highway and Tennessee Avenue.

On the morning in question and while the deceased and his father were in the yard of their home, a Mr. Cross, accompanied in his station wagon by five children, stopped to visit with deceased's father. Mr. Cross was travelling north and stopped his station wagon on his left side of the road, partly on the shoulder, facing in the direction from which defendant approached, with the wheels approximately two to two and one half feet on the paved roadway. A few minutes after Mr. Cross had so stopped his station wagon, a passing vehicle struck and injured a dog belonging to a neighbor who lived across the highway from the home of the deceased. Shortly thereafter the deceased's father carried the dog across the road to the neighbor's house. During this time, it appears that the deceased was playing with the other children in the yard of his home between the parked vehicle and the house. Just before the accident Mr. Cross went to the opposite side of the highway, crossing in full view of the defendant. As the deceased's father was returning from the neighbor's house, he saw for the first time the defendant's vehicle and the deceased in the highway. Mr. Cross had walked across the highway and was then standing near the road. The defendant's automobile was about 4 or 5 feet from the child when the father saw it. At that time, the deceased was crossing from the rear of the parked vehicle and had reached a point about one foot to defendant's left of the center of the paved roadway where he was struck. There was testimony that the deceased was not running across the road at the time, but just 'trotting along the road like a child will do.' The defendant was veering to her left and struck the deceased with the right front of her vehicle between the center thereof and the right headlight. Other than the defendant, the father of the deceased was the only eye witness to the actual impact.

As the defendant approached, she had a clear view of the scene for a distance of approximately three city blocks. She was driving through a residential section of the town and had passed a sign about four blocks away which warned: 'Children playing--35 M.P.H.' There was testimony that the left wheels of defendant's vehicle made intermittent skid or brake marks on the pavement for a distance of 59 feet before striking the deceased and 63 feet of intermittent skid marks after the impact, coming to rest on a slight embankment over which the chassis of her car dragged for the last five feet. The speed of the car was estimated at 40 to 45 miles per hour by witnesses who saw it a few moments before the impact. There was also testimony that the right wheels of the defendant's car made no skid or brake marks on the pavement, and that all of the skid marks were made by the left wheels, indicating that the brakes on the right side were not holding and those on the left side only intermittently.

The defendant testified that, as she approached the scene, she saw the Cross automobile parked partly on the pavement, facing her, in her lane of travel, and Mr. Cross run across the highway from behind his parked car, but saw no one else about the scene. At that time, she estimated her speed at twenty to twenty-five miles per hour when she was about a 'car and a half length' away from the Cross automobile. Although she saw the Cross vehicle parked partly in her lane of travel and saw him run across the road from behind it, her testimony is susceptible of the inference that she did not reduce her speed. The deceased was struck as he was apparently following Mr. Cross to the opposite side of the road. The defendant said that she did not see the deceased until just before her car struck him; that he came out from behind the parked vehicle, 'in a flash,' into the path of her automobile; and that she immediately put on brakes and pulled her car to the left in an effort to avoid the accident, but was unable to do so.

While the injury and death of a child from being struck by an automobile brings a keen sense of tragedy, it is recognized that a motorist is not an insurer of the safety of children. Until the driver has notice of the presence or likelihood of children near the roadway, the care to be exercised as to children is generally the same as that toward adults. 2A Blashfield's Automobile Law and Practice, Section 1492.

Accordingly, in the absence of notice of the presence or likelihood of children in or near the roadway, we have held that where a motorist is proceeding with due regard to the law of the road and the regulations governing the operation of his vehicle, he is not generally liable for injuries 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. 315, 98 S.E.2d 761; Porter v. Cook, 196 S.C. 433, 13 S.E.2d 486. See: 2A Blashfield's Automobile Law and Practice, Section 1498; 7 Am.Jur. (2d) 1000, Section 450; 60 C.J.S. Motor Vehicles § 396b.

However, where the driver of a vehicle knows, or should know, that children may reasonably be expected to be in, near, or adjacent to the street or highway, he is under a duty to anticipate the likelihood of their running into or across the roadway in obedience to childish impulses, and to exercise due care under the circumstances for their safety. 7 Am.Jur. (2d), Automobiles and Highway Traffic, Sections 429 and 450; 60 C.J.S. Motor Vehicles § 396a. An excellent annotation dealing with the present question may be found in 30 A.L.R.2d 5.

As stated in the foregoing annotation, the circumstances are important in determining whether the standard of due care has been reached with respect to children, where the motorist knows or should know of the likelihood of their presence. For, since the law recognizes that children act upon childish impulses, there is imposed upon the motorist, in order to reach the standard of ordinary care with respect to them, the duty to exercise more vigilance and caution than might be sufficient in the case of an adult. 60 C.J.S. Motor Vehicles § 396a; 7 Am.Jur. (2d), Automobiles and Highway Traffic, Section 429; 2A Blashfield's...