Hopkins v. Derst Baking Co.

• Decision Date: 06 June 1952
• Docket Number: No. 16635,16635
• Court: South Carolina Supreme Court
• Parties: HOPKINS v. DERST BAKING CO. et al.

Page 407

71 S.E.2d 407

221 S.C. 497

HOPKINS v. DERST BAKING CO. et al.

No. 16635.

Supreme Court of South Carolina.

June 6, 1952.

Moore & Mouzon, Charleston, for appellant.

Thomas P. Bussey, Robert B. Stall, Jr., Charleston, Colley & Orr, Washington, Ga., for respondent.

TAYLOR, Justice.

Respondent's intestate, a child of two years of age, was run over and killed by a truck belonging to the Derst Baking Company, and driven by its employee Marvin Brodie.

Upon trial of the case in the Court of Common Pleas of Charleston County, the jury found for the plaintiff in the sum of $22,500 actual damages.

At the close of plaintiff's testimony, appellants moved for a nonsuit upon the grounds that there was no evidence of negligence on the part of appellants and at the close of all testimony, motion was made for a directed verdict upon the same grounds. Both of which were denied by the presiding judge. Motion for a new trial was duly made which was also refused and appellants now come to this Court contending that there was error: First, in submitting to the jury the issue of punitive damages after having previously announced otherwise. Second that the verdict was so grossly excessive as to indicate passion, prejudice, or caprice. Third, that there was error in denying appellant's motion for a nonsuit and directed verdict in that there was no evidence of actionable negligence.

First we will consider the question of whether there was sufficient evidence of negligence to require the case being submitted to the jury bearing in mind that the evidence must be considered in the light most favorable to the plaintiff. The testimony and all inferences from it must be taken most strongly against the defendant and if there be any testimony tending to prove any one or more of the specifications of negligence, motion for a nonsuit should be refused. Sturdyvin v. Atlantic & C. A. L. R. Co., 98 S.C. 125, 82 S.E. 275; Montgomery v. National Convoy & Trucking Co., 186 S.C. 167, 195 S.E. 247; Jones v. American Fidelity & Casualty Co., 210 S.C. 470, 43 S.E.2d 355; Mullinax v. Great Atlantic & Pacific Tea Co., S.C., 70 S.E.2d 911.

The incident which resulted in the death of David Carol Hopkins occurred on February 10, 1950, on Hackermann Avenue, which is a thickly populated residential suburb of the city of Charleston, near the city limits. At approximately 10:30 on this Friday morning the appellant, Marvin Brodie, while employed by and driving one of Derst Baking Company's delivery trucks, parked his truck on the south side of said street and left same by way of the right door for the purpose of making delivery to a rolling store operated from Number 1917. Upon learning that Mr. Kosack who operated the rolling store had already begun canvassing the neighborhood, he noticed that groceries were being delivered to a store building across the street which had been closed for some time. He proceeded to solicit this business for his employer and returned to the truck from its left side, entering on the driver's side.

The testimony as to just where this truck was parked is in considerable dispute. The paving was 18 feet wide with a 20 foot base which extended approximately one foot on each side. There were no paved sidewalks and no fences around the houses. The rest is dirt and grass with what was termed a 'valley gutter' for drainage purposes. The area between the pavement and the property lines was approximately 11 feet wide with the valley gutter approximately in the center of this area. The testimony of the position of the parked truck ranges all the way from the left wheels being on the pavement to being completely across the valley gutter, from in front of Number 1917 to being in front of Number 1915 where the Hopkins family lived.

There is no evidence of the body of the child having been dragged which according to some testimony was found 7 to 9 feet south of the pavement and there is other evidence from which the jury might infer that the body was 12 to 15 feet from where the truck had been parked. None of the witnesses testified to having seen the child. The driver stated that he returned to the truck, entered from the driver's side, did not see the child, observing that the street was clear of traffic, he proceeded to pull off and was not aware of the tragedy until a Mr. Clark waved him to stop, that he was still in first gear and stopped immediately and learned for the first time that the child had been run over. One of the investigating officers testified that Brodie told him that he felt both right wheels pass over something but he thought it to be the water meter (which the plat shows to be in front of Number 1915). Mr. Clark testified that he was expecting the mailman, that although he saw Mr. Brodie and the truck, he was looking in the opposite direction at the moment of impact and did not see the child. Mrs. Britt testified that a short while after the driver entered the truck she 'heard the cras' and knew something had happened although she did not see the child. Another witness described the noise as a 'bump'. Another witness testified that he was in position to see the front of the truck and saw no child there. This latter testimony together with that of the driver is relied upon by the appellants to support its theory that the child had crawled under the truck while respondent contends that the driver pulled off while looking back making his observations as to possible oncoming traffic from the rear.

It is not necessary that...