Hicks v. Herring, 18399
| Decision Date | 16 September 1965 |
| Docket Number | No. 18399,18399 |
| Citation | 144 S.E.2d 151,246 S.C. 429 |
| Court | South Carolina Supreme Court |
| Parties | Daniel P. HICKS, Respondent, v. Marvin Doll HERRING, Appellant. |
Willcox, Hardee, Houck, Palmer & O'Farrell, Florence, for appellant.
Gasque, Seals & Gasque, Marion, for respondent.
The plaintiff, Daniel P. Hicks, sustained serious and painful injuries while riding as a guest passenger in an automobile owned and operated by the defendant, Marvin Doll Herring, and brought this action for damages. The jury found for plaintiff $2,000.00 actual damages and $7,500.00 punitive damages and defendant has appealed. Plaintiff has adopted defendant's statement of the questions involved, as follows:
'1. Was respondent guilty of contributory recklessness and heedlessness so as to bar recovery under the guest statute?
The nature of the first question, which challenges the refusal of the circuit court to direct a verdict for defendant upon the ground of contributory recklessness, requires a statement of the facts, viewing the testimony and reasonable inferences to be drawn therefrom in the light most favorable to the verdict.
Hicks and Herring, both in their forties and lifelong acquaintances, got together in Marion, South Carolina, in the later afternoon of Saturday, February 8, 1964. They rode around Marion in Herring's automobile for a time. Then, they traveled about twenty-eight miles to a filling station near Johnsonville, where Hicks borrowed $5.00 from the manager and paid for some gas for Herring's car.
On the return trip, Hicks was injured when the Herring automobile collided with an automobile driven by one Marvin Bennett. Hicks elected to sue Herring only, and Bennett is not a party to the action.
Both vehicles were traveling in a northerly direction on a secondary highway with the Bennett car in the lead. As Herring rounded a curve, he saw the Bennett car, some three hundred feet ahead of him, traveling at a slow rate of speed. Bennett was preparing to make a left turn into a dirt road or drive, and, according to his testimony, had activated his left turn signal light when he was more than one hundred feet south of the drive. He saw the lights of Herring's car in his rear view mirror, and, thinking that he had time to clear the highway, turned his car toward the left, where it was struck by the Herring automobile and knocked off of the highway. Both vehicles were extensively damaged.
The complaint stated a case under the Guest Statute, Section 46-801, Code of 1962, alleging that Hicks' injuries were caused by the recklessness and willfulness of Herring, inter alia, in driving at an excessive, dangerous and unlawful speed and in undertaking to pass the Bennett vehicle when he knew, or should have known, that it was making a left turn.
The answered pled the affirmative defense of contributory recklessness and willfulness, alleging that Hicks, after ample opportunity to observe the manner in which Herring was operating his automobile, acquiesced therein, and continued to ride with him without protest or objection.
Hicks testified that Herring drove at forty to forty-five miles per hour on the way to Johnsonville, but that he drove faster on the return trip. Hicks 'was sorta scared,' according to his testimony, because Herring 'was driving a little too fast.' He thought they might have a wreck if the speed was not reduced, but made no comment, objection or protest. He slumped down in the seat, placed his knees on the dashboard and refrained from looking at the road. The extent of his testimony as to the immediate circumstances of the collision is that he 'looked up' when he 'heard the tires holldr' and saw 'some lights and the side of an automobile' in the highway.
Marvin Bennett, the driver of the other automobile, convicted himself of poor judgment, at least, in undertaking to make a left turn across the highway, although he saw the headlights of the Herring's rapidly approaching automobile in his rear view mirror. In the light of hindsight, he estimated that Herring was driving 75 or 80 miles per hour. However, he had scant opportunity to form as estimate as to speed and his opinion, apparently, was based upon the fact that he did nt clear the highway, as he had expected, and upon the force of the collision.
Two passengers in the Bennett car were examined as to Herring's speed. Neither would give an estimate in miles per hour, but both, also on limited opportunity for observation, expressed the opinion that his speed was in excess of 55 miles per hour.
Herring testified that he drove at 50 to 55 miles per hour to and from Johnsonville, except when special circumstances called for a reduced speed. He saw the tail-lights of the Bennett automobile near 'where that road turns off there,' but did not see a turn signal. Quoting further from his testimony:
Bennett and the passengers in his automobile testified that after Bennett rounded the curve, he started the left turn signal and reduced his speed as he approached the road or driveway on his left. There is conflict in the testimony as to whether Bennett had actually begun his turn before Herring pulled into the left lane and started to pass him.
United the testimony, more than one reasonable inference may be drawn as to the proximate cause of the collision; whether Herring was driving at an excessive speed and, if so, whether such speed was causally connected with Hicks' injuries. It is reasonably inferable that Herring could have avoided the collision by remaining in his right lane until Bennett completed his turn; that he was guilty of reckless misconduct in voluntarily undertaking to pass the turning automobile, of which movement a proper signal was being given; and that such misconduct was the proximate cause of Hicks' injuries. It is, of course, immaterial to the issue before us whether Bennett was also guilty of causal negligence or recklessness.
The emergency which culminated in the collision had its inception when Hering turned into the left lane and ran its course in a matter of moments. Hicks may not soundly be charged with recklessness, or even negligence, as a matter of law, for his failure to observe the turning car in time to warn the driver against attempting to pass or to avoid the hazard by any means. The fact that Hicks thought that Herring was driving at an unreasonable speed and failed to protest, does not bar his recovery for injuries which, the jury could reasonably have found, were caused by an unrelated act of recklessness, which Hicks had no reason to anticipate and against which he had no opportunity to protect himself. In this respect, the case is akin to Hiott v. Bishop, 244 S.C. 524, ...
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