Horton v. Greyhound Corp., 18003

Citation128 S.E.2d 776,241 S.C. 430
Decision Date11 December 1962
Docket NumberNo. 18003,18003
PartiesHazel Salley HORTON, Administratrix of the Estate of J. C. Scott, Appellant, v. The GREYHOUND CORPORATION, James E. Norman and Adelaide Weaver, of whom The Greyhound Corporation and James E. Norman are, Respondents.
CourtUnited States State Supreme Court of South Carolina

James P. Mozingo, III, Darlington, D. Carl Cook, Hartsville, John P. Gardner, Greer & Chandler, Darlington, for appellant.

Wright, Scott, Blackwell & Powers, Florence, Paul A. Sansbury, Darlington, for respondents.

BRAILSFORD, Justice.

J. C. Scott was killed in a head-on collision between a pick-up truck, in which he was a passenger, and a Greyhound bus. This action was brought by Scott's Administratrix, under the wrongful death statute, against The Greyhound Corporation and its bus driver. A trial resulted in a verdict for the defendants by direction of the court and plaintiff appealed. Admittedly, the evidence was sufficient to raise a jury issue as to whether the bus was being operated at an excessive rate of speed. The sole question is whether plaintiff sustained the burden of producing evidence from which a reasonable inference of causal connection between the speed of the bus and the fatal collision may be drawn; or whether such an inference may be drawn from all of the evidence.

On a clear day in June, 1959, the bus approached the scene of the collision from the north, traveling along Highway #52, toward Darlington. The truck approached from the south. The vehicles met on a long, rather sharp curve. The centerline of the highway was marked with double yellow lines to indicate no passing. At about the apex of this curve, a secondary highway intersected from the west, or to the right of traffic headed toward Darlington. The collision, in which both occupants of the truck were killed, occurred in the intersection, south of the center of the secondary road and on the extreme right of the lane for south bound traffic on Highway #52. The right wheels of the bus were on the asphalt shoulder at the point of impact.

The damage to the truck was described by the investigating patrolman as having been, 'On the right front. * * * It looked like all over the right front. From here on back. (indicating on photograph?) From the front wheel on back on the right side.' The only testimony as to the point of impact on the bus was that certain photographs showed 'the damage to the front part. * * *'

The patrolman testified that when he arrived at the scene 'the bus was on the right hand side facing Darlington, south. * * * Off on the shoulder of the road up a little embankment;' 43 feet, 10 inches from the point of impact. The truck was also on the western side of the highway, 'just off on the shoulder * * *;' 34 feet, 10 inches from the point of impact.

There were no marks on the highway indicating that the brakes of the truck had been applied. The first tire marks made by the bus were described by the patrolman as friction marks, not skid marks. 'You wouldn't necessarily be applying brakes but you had those friction marks.') These extended 28 feet to the beginning of definite brake or skid marks, which, in turn, extended 98 feet, 10 inches to the point of impact.

In addition to evidence of these physical facts, the plaintiff offered three witnesses who saw the bus in motion prior to and at the moment of impact. None of them saw the truck until afterward. Two of these witnesses testified that they were traveling toward Darlington when the bus passed them at or near Moody's store, some 1200 feet north of the intersection. They estimated its speed at from 70 to 80 miles per hour. They did not see the collision, but saw the bus as it went off the road and 'a lot of dust and calamity there in the road * * *.' The other witness was standing near the scene. He could see the bus but not the eastern lane of the highway. He noticed 'the bus putting on his brakes * * * right pretty close this Bennettsville Motel sign.' (Much of the testimony as to locations is unintelligible because the witnesses were examined with reference to maps, photographs and a model of the scene, which are not included in the record on appeal.) The witness observed that the bus was leaving the road and saw when it 'hit but--couldn't tell exactly what it did hit. * * *' The bus then struck a ditch and 'it looked like it jumped ten foot in the air.' It came to rest with its rear wheels in the ditch.

In the foregoing summary of plaintiff's evidence we have dealt generally with that relating to excessive speed only, because the sufficiency of the evidence in this respect must be conceded. On the other hand, we have striven to include every circumstance which could possibly be urged in support of a finding of proximate cause.

The bus driver testified that as he approached the intersection, at about 50 miles per hour, he saw a pick-up or panel truck stopped in the north bound lane, giving a left turn signal. Further, as 'I got very close to this pick-up or panel truck, ever what it might have been, I noticed this pick-up coming from behind. I was awful close and it was in a weave and it just came directly from behind it right straight out in the path of me. I pulled to the right. I threw all the brakes on I had. And we collided there in the center of this--I would say a little past the center right along here (indicating S-134).

* * *

* * *

'Q. Were your brakes on at the time of the impact?

'A. Yes, sir, my brakes was on at the time of the impact and when I hit, why, of course, it threw me away from the brakes. I went through the windshield almost.

* * *

* * *

'Q. At the point of impact was any part of your bus on that eighteen foot pavement?

'A. Yes, sir, my left wheels were. Yes, sir.

* * *

* * *

'Q. Can you estimate how fast this pick-up was going that swerved out and across into the front of the bus?

'A. Well, sir, I really couldn't say, but it was awful fast.

* * *

* * *

'Q. And how far would you estimate that you were away from the front of this vehicle that was stopped there when this other truck swerved out to the left in front of you?

'A. Now in that question, of course, you would seem that you was a lot closer than probably you was because it all happened so fast.

'Q. Could you estimate about how far you were?

'A. I would estimate when I first noticed this vehicle that it was going to come into my path, I would say I was within thirty feet of it.

'Q. Of the front of this other vehicle?

'A. Yes, sir.'

The driver's testimony was corroborated by two disinterested witnesses, who were passengers on the bus, one a school boy and the other a marine. We quote from the former's testimony:

'Q. Will you tell the Court and jury what you saw?

'A. Well, we were coming up the road and there was a car or a truck, a vehicle, parked--I don't remember--and the bus driver slowed down as--so he wouldn't hit it if he did turn in front. And so all of a sudden this other truck turned out in front of him and the bus driver slammed on brakes and kind of turned to the right but he couldn't avoid hitting him because he turned right in front of him.

* * *

* * *

'Q. Do you have any idea how fast this pick-up was coming that turned out in front of the bus?

'A. Well, it was coming pretty fast because I didn't see it hardly any before the accident. It just appeared right then.'

And from the testimony of the marine:

'Q. When you were sitting there looking out of the windshield will you tell us what you saw?

'A. I don't understand--what I saw when?

'Q. Just prior to the accident.

'A. We were coming going around a curve at the time and I saw a truck stopped with the left-hand turn signal on to make a left-hand turn. I felt the bus driver slowing down the bus * * *.

* * *

* * *

'Q. Did you feel any brakes being applied on the bus?

'A. At the time of when I saw the truck, yes, sir.

'Q. And then did you see anything else?

'A. Yes, sir, I did. I saw this truck coming up very fast at a high rate of speed and cut out in back of the truck that was stopped, right into the path of the bus. The bus driver slammed on his brakes and swerved to turn to the right * * *.

* * *

* * *

'Q. Do you have any idea or can you estimate how far you were and the bus was from the front of this vehicle that was going to turn when you saw the pick-up swerve out in front of you?

'A. He swerved out when we were almost on top of him, sir, because as he swerved out, it was a matter of seconds, almost immediately, when I felt the impact of the bus hitting the vehicle and then another impact when we hit the ditch.'

The legal principles which control the rights of the parties are well established. The burden was on plaintiff in the court below to prove that the bus driver was negligent, in one or more of the particulars specified in the complaint, and that such negligence on his part was a proximate cause of the fatal collision. Negligence may be deemed a proximate cause of an injury only when without such negligence the harm would not have occurred or could have been avoided. Questions of proximate cause are ordinarily for the jury and may be resolved by direct or circumstantial evidence. 'The right to recover on circumstantial evidence for death resulting from another's negligence depends upon the reasonable and logical connection such proof establishes between the death and the negligent act alleged to have caused it. It is incumbent upon the plaintiff, in the absence of direct evidence, to show the existence of such circumstances as would justify the inference that the injury which caused the death was due to the wrongful act of the defendant, and not leave the question to mere speculation or conjecture.' Leek v. New South Express Lines, 192 S.C. 527, 7 S.E.2d 459. In passing upon a motion for a directed verdict, it is the duty of the court to view the evidence and all inferences which may reasonably be drawn therefrom in the light most favorable to plaintiff. However,...

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