Hopkins v. Reynolds, 18173

• Decision Date: 27 February 1964
• Docket Number: No. 18173,18173
• Citation: 135 S.E.2d 75,243 S.C. 568
• Parties: Agnes HOPKINS, Respondent, v. Ralph J. REYNOLDS and Jacob Garrick, Appellants.
• Court: South Carolina Supreme Court

Page 75

135 S.E.2d 75

243 S.C. 568

Agnes HOPKINS, Respondent, v. Ralph J. REYNOLDS and Jacob Garrick, Appellants.

No. 18173.

Supreme Court of South Carolina.

Feb. 27, 1964.

Robinson, McFadden & Moore, Columbia, for appellants.

Belser, Belser & Baker, Columbia, for respondent.

LEWIS, Justice.

This action was brought by the plaintiff to recover damages for personal injuries sustained when she was struck by an automobile while attempting to cross the highway in front of her home. The automobile which struck her was owned by the defendant Ralph J. Reynolds and operated at the time by his employee, the defendant Jacob Garrick, within the scope of his employment. From a verdict for the plaintiff, the defendants have appealed.

Under the exceptions, our review of the record is solely to determine whether the trial judge erred in refusing the motion of the defendants for a directed verdict in their favor. The defendants contend that their motion should have been granted because the evidence failed to show any actionable negligence or recklessness on their part and, even if such was shown, the only reasonable inference from the testimony was that the plaintiff was guilty of contributory negligence and recklessness so as to bar her of recovery.

The plaintiff, 78 years of age, lived with her son on Highway No. 769 in a rural section of Richland County, South Carolina. A driveway leads from the home to the highway, and directly across the highway from the driveway is their mailbox. Highway No. 769 is a paved road, 18 feet in width with dirt shoulders about six feet wide, and runs generally in a north-south direction in front of plaintiff's home which is located on the west side thereof and the mailbox on the east side. From the mailbox, looking south in the direction from which the defendant's automobile came, the highway is straight for two-tenths of a mile to a point where the road begins to curve.

On December 11, 1961, about four o'clock P.M., the plaintiff left her home to walk to the mailbox. In doing so, it was necessary for her to cross the paved highway. As she was walking across the road toward the mailbox, she was struck by, or ran into, the left front fender of the defenant's automobile which approached from her right travelling in a northerly direction. The plaintiff was struck after she had crossed the south bound lane of the road and entered the north bound lane of travel of the automobile. The automobile was proceeding in its proper lane of travel and was brought to a stop within two or three car lengths from the point of impact.

While the plaintiff was 78 years of age and walked slowly, the testimony is uncontradicted that her vision and hearing were not materially impaired. She testified that she did not see the automobile that struck her and that she walked onto the paved highway without stopping.

Although the plaintiff's son did not see the accident, he was working nearby and testified that, as his mother was walking toward the highway and was about 10 feet from the edge thereof, he saw the defendant's automobile approaching about 300 feet away and travelling 50 to 55 miles per hour. He said that it was foggy and drizzling rain at the time and that he could just make out that it was an automobile at that distance. The record is clear, however, that the weather conditions did not materially affect the ability of either party to see the other within a reasonable distance.

The defendant Garrick, the driver of the automobile, was called as a witness for the plaintiff. He testified that, when he first saw the plaintiff, to whom he was related, he was about 100 to 150 feet from her and travelling about 45 miles per hour. He described the circumstances surrounding the accident as follows: 'When I first saw her (plaintiff), she was walking out of her driveway up to the asphalt road. She walked up to the road and stopped, and looked in my direction as if she was waiting for me to go by, and I started on by, and just then she walked off, and I hit my brakes and pulled to my right to try to miss her, but she was still coming to me.' His testimony was that he did not sound his horn to warn the plaintiff of his approach because she had stopped at the edge of the road, apparently to wait until he passed, and that, when she walked into the highway, he did not have time to do so.

The facts of this case are strikingly similar to those in the case of Carma v. Swindler, 228 S.C. 550, 91 S.E.2d 254. There the plaintiff, after first looking in both directions and seeing no vehicle and hearing no horn, attempted to cross in the night time a 21 foot roadway. When she had almost crossed the road, she was hit by the defendant's truck. Her daughter, who was with her, testified that she looked both ways before crossing the road and saw the defendant's truck with its lights burning about a block away and approaching rapidly. In the Carma case the same statutory provisions relating to pedestrians and the sounding of horns by operators of motor vehicles were involved as are urged here. The Trial Judge granted a non-suit on the ground that the evidence conclusively showed that the plaintiff had been guilty of contributory negligence. The following language of the Court in affirming the decision of the lower court in the Carma case is appropriate and conclusive here: 'We find no evidence in the record justifying the inference that respondent, if negligent at all, was guilty of more than simple negligenge. And we think that the evidence on behalf of appellant points conclusively to contributory negligence on her part. It was her duty before attempting to cross the highway, to see that the way was clear, especially since she was about to cross at a point where vehicular traffic had the right-of-way; and her failure to look would have been contributory negligence. Had she looked, she could not have failed to see, as her daughter did, (here plaintiff's son) the lights of respondent's truck approaching. It is obvious therefore that she either did not look or, if she looked, she did so in such careless fashion as not to see what was in plain view. In either case she was guilty of contributory negligence as a matter of law. Manhattan For Hire Car Corporation of Richmond v. Williams, 191 Va. 489, 62 S.E.2d 10.'

The plaintiff's son testified that immediately after the accident the defendant made the statement that he didn't see the plaintiff 'when he hit her or he wouldn't have hit her.' We have not discussed this statement because it was not relied upon or given any weight by counsel in their arguments. Irrespective, however, such testimony, if given full weight, does not alter out view that the plaintiff was guilty of contributory negligence so as to bar her of recovery.

The plaintiff contends, however, that, even if she was guilty of negligence, the evidence sustains liability of the defendants under the last clear chance doctrine. This doctrine is not available where, as in this case, the injured party was guilty of contributory negligence as a matter of law. Otherwise, contributory negligence as a defense would disappear. Bishop v. Atlantic Coast Line R. Co., 213 S.Ct. 125, 48 S.E.2d 620; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337; Cook v. Shoulder, 200 Va. 281, 105 S.E.2d 860. See: 4 (Part 2) Blashfield's Cyclopedia of Automobiles Law and Practice 417, Section 2814; 7 Am.Jur.2d 927, Section 379.

It is argued that the defendant failed to take reasonable precautions to avoid striking the plaintiff after he observed her in a place of peril. The driver of the automobile testified that he first saw the plaintiff when he was 100 to 150 feet away and that she had stopped at the edge of the road and looked in his direction as if to wait until he passed. The plaintiff said that she walked into the highway without stopping and did not see the car. Her son testified that he saw the approaching vehicle when it was 300 feet away and that his mother was then 10 feet from the edge of the road. The speed of the car was estimated at from 45 to 55 miles per hour, which was within the maximum speed limit. Under any view of the testimony, the distance that the car had to travel before striking the plaintiff involved only three to five seconds in time. Both parties were in plain view of each other and, when the driver first saw the plaintiff, she was at the edge of the roadway in a place of safety. The driver, under the circumstances, had the right to assume that the plaintiff would not leave a place of safety and undertake to cross the highway in front of an oncoming vehicle. Under the evidence, there was not sufficient time for effective action after the peril of the plaintiff became apparent.

However, regardless of the view taken of the testimony in this case, the fact remains that by the exercise of due care the plaintiff could have avoided the accident by simply stopping at anytime before she was struck. Yet, after the car could have been seen, she continued to walk from a place of safety into the oncoming vehicle. Her active negligence continued up to the time of the impact and bars recovery.

In the foregoing Bishop case, the applicability of the last clear chance doctrine was involved. In holding that the doctrine was not available, due to the contributory negligence of the injured party, the Court said: 'The doctrine now sought to be invoked by appellant is not applicable to the facts of this case. We think the only inference to be drawn from this testimony is that the deceased was guilty of concurrent and continuing negligence up to the time of a collision. Truett v. Atlantic Coast Line Railway Co., 206 S.C. 144, 33 S.E.2d 396. It would seem illogical to hold that due care by respondents would have prevented the accident and yet ignore the correlative fact that due care by the decedent would also have prevented it.'

Reversed and remanded for entry of judgment for the defenants.

TAYLOR, C. J.,...