Holcombe v. W.N. Watson Supply Co., Inc.

• Decision Date: 17 November 1933
• Docket Number: 13719.
• Parties: HOLCOMBE v. W. N. WATSON SUPPLY CO., Inc.
• Court: South Carolina Supreme Court

171 S.E. 604

171 S.C. 110

HOLCOMBE v. W. N. WATSON SUPPLY CO., Inc.

No 13719.

Supreme Court of South Carolina

November 17, 1933

Appeal from Common Pleas Circuit Court of Greenville County; S.W. G Shipp, Judge.

Two separate actions by Lidie B. Holcombe, executrix of the estate of W. W. Holcombe, deceased, against the W. N. Watson Supply Company, Inc., tried together by consent. From a judgment in favor of the plaintiff in each case, the defendant appeals.

Judgments affirmed.

Stephen Nettles and P. A. Bonham, both of Greenville, for appellant.

Price & Poag, of Greenville, for respondent.

STABLER Justice.

On March 7, 1932, W. W. Holcombe, an elderly resident of Greenville, was struck and fatally injured by a motortruck on one of the streets of the city. The plaintiff, his widow, as executrix of his estate, brought two actions against the defendant company; one under the death statute for the benefit of herself and the two children of the deceased, and the other under the survival act for the benefit of the estate. She alleged that on the morning of March 7, her husband was walking north on the west sidewalk of Washington road in the city of Greenville; that "when he reached Boyce Avenue, where it intersects with Washington Road, and started to cross, a truck owned by the defendant and operated by one of its negro drivers, suddenly and without warning turned from Washington Road into Boyce Avenue and ran into and against him, knocking him down against the concrete pavement, breaking his leg, cutting and bruising his face and body, and injuring him internally to such an extent that on March 16th he died"; and that his injuries and death were caused by the negligence and recklessness of the driver of the truck in the following particulars:

"(a) In failing to have the truck under proper control so that he could either stop or avoid a collision.

"(b) In failing to give any warning signal of his approach.

"(c) In failing to drive to the right of a safety mushroom placed in the center of Washington Road in direct violation of the ordinance of the City of Greenville.

"(d) In failing to enter Boyce Avenue to the right of the center of the street as required by the ordinance of the City of Greenville.

"(e) In making a sharp left turn from Washington Road into Boyce Avenue so as to enter Boyce Avenue to the left of the center of the street in strict violation of the ordinance of the City of Greenville, and,

"(f) In failing to keep a proper lookout for pedestrians using the street."

The defendant interposed a general denial and pleaded, as a further defense, "that the said W. W. Holcombe was negligent and reckless in failing and neglecting to take any precautions for his own safety in crossing Boyce Avenue on the occasion stated in the complaint, and such negligence and recklessness contributed as a direct and proximate cause of his death."

The cases were tried together by consent; the trial resulting in a verdict for plaintiff for $6,000 in the action under the death statute, and for $525.15 in the suit under the survival act.

At the close of plaintiff's testimony, counsel for the company made a motion for a nonsuit on the following grounds: (1) That there was no proof that the driver of the truck was the agent of the defendant on the occasion of the accident; and (2) that there was no evidence of actionable negligence or willfulness in the case. These grounds are renewed here by defendant's exceptions.

In his consideration of the first ground of the motion, the trial judge held that the admission by the company of the ownership of the truck, and that it was in the possession of the driver at the time of the accident, was not a sufficient showing of agency; but he reopened the case and permitted the plaintiff to offer additional testimony.

W. N. Watson, president of the defendant corporation, was then called as a witness. He testified that the man who was driving the truck was in the employ of the defendant at the time that Holcombe was injured, and that he was still in its employment; that the truck was used for the purpose of making deliveries only, and that the driver was not permitted to use it for anything except the business of the corporation; and that investigation by the witness did not disclose that such employee was violating any of the company's rules at the time of the accident. Judge Shipp then refused to grant the motion on that ground.

The holding of the trial judge was correct. The evidence was ample, under our decisions, to send the case to the jury on the question of agency. See Osteen v. South Carolina Cotton Oil Company, 102 S.C. 146, 86 S.E. 202, L. R. A. 1916B, 629; Williamson v. Pike, 140 S.C. 376, 138 S.E. 831; Chantry v. Motor Company, 156 S.C. 1,152 S.E. 753.

As to the second ground, it appears that no one saw the accident except the driver of the truck, and for some unexplained reason he was not offered as a witness in the case. A number of other persons, however, who arrived upon the scene immediately after the accident, did testify. The evidence tended to show that a mushroom, or traffic signal, had been placed by the city in the center of Washington road at its intersection with Boyce avenue. The plaintiff introduced in evidence a city ordinance, which provided that a person driving a motor vehicle, in making a left turn at this intersection, should keep to the right of such signal. There was also introduced in evidence another ordinance, which provided that pedestrians, where a signal of such sort is placed, have the right of way in crossing the street at that point. There was testimony which tended to show that the driver of the truck turned out of Washington road into Boyce avenue to the left of the traffic signal in violation of the city ordinance. This was inferable from testimony offered as to the position of the truck and that it struck the deceased very near the left curb of Boyce avenue in the direction in which it was going. Unquestionably, this and other testimony in the case made the issue of actionable negligence and willfulness one for the determination of the jury. If the defendant violated the city ordinances as alleged, and as the testimony tended to show, he was guilty of negligence per se. It is not denied that the plaintiff at the time was where he had a right to be; that is, he had a right to cross Boyce avenue at that point, if he so desired, exercising, of course, due care for his own safety. The driver of the motor truck, a highly dangerous machine, was bound to use such care as the situation or circumstances demanded. As stated in Manly v. Abernathy, 167 N.C. 220, 83 S.E. 343, quoted with approval in Crouch v. Cudd, 158 S.C. 1, 155 S.E. 136, a driver of such machine, "when turning at the angle of two intersecting streets or roads, should strictly obey the law and exercise that degree of care generally which is commensurate with the great hazard produced by failure to do so." There was no error in refusing the motion on this ground.

The main question presented by the appeal is raised by the fourth exception, which reads as follows: "Error in refusing to permit the defendant to prove that the deceased had been habitually negligent and careless in his use of the highways. It is respectfully submitted that the testimony of the witness Harvley and the testimony of the other witnesses proffered on this point was competent to show a course of habit or conduct on the part of the deceased."

H. C Harvley, called as a witness by the defendant, testified that he had seen the deceased at times, for a period of several months, on the Laurens road walking to and from his farm, which was about two miles out of town. He was asked if he knew anything about Holcombe's habits in his use of the highway. This question was objected to by counsel for plaintiff, and the objection was sustained. In the absence of the jury,...