Howard v. SC DEPT. OF HIGHWAYS

• Decision Date: 09 October 2000
• Docket Number: No. 3253.,3253.
• Citation: 538 S.E.2d 291,343 S.C. 149
• Parties: Isaac HOWARD, Respondent, v. SOUTH CAROLINA DEPARTMENT OF HIGHWAYS, Appellant.
• Court: South Carolina Court of Appeals

343 S.C. 149

538 S.E.2d 291

Isaac HOWARD, Respondent, v. SOUTH CAROLINA DEPARTMENT OF HIGHWAYS, Appellant.

No. 3253.

Court of Appeals of South Carolina.

Submitted July 21, 2000.

Decided October 9, 2000.

Rehearing Withdrawn November 25, 2000.

James B. Jackson, Jr., of Yarborough, Hutto & Jackson, of Orangeburg, for appellant.

Fleet Freeman, of Freeman & Freeman, of Mt. Pleasant, for respondent.

PER CURIAM:

The South Carolina Department of Highways (Highway Department) appeals from a jury verdict in favor of Isaac Howard arising from the collision of Howard's logging truck with a Highway Department lawn-mowing tractor. We affirm.¹

FACTS AND PROCEDURAL HISTORY

Isaac Howard, a veteran truck driver, was hauling a load of freshly harvested timber to a lumber mill on May 5, 1995, when he saw a Highway Department tractor with a rear mounted mowing machine cutting grass along the right-hand side of the road directly ahead of him. Both vehicles were traveling in the same direction towards a roadway bridge. Howard noticed that a portion of the mowing deck extended onto the paved surface of his lane so he moved to the left in order to pass the tractor without striking the mowing deck. Just as Howard began to overtake the tractor, it abruptly swerved from the shoulder into his lane and proceeded across the bridge. Although Howard applied his brakes and moved completely into the opposite lane of travel, the bridge was not wide enough to allow Howard to pass the tractor without striking the rear of the mower deck. The accident severely injured Howard and caused extensive damage to his truck.

Although Howard admits to seeing the tractor as it approached the bridge, he maintains that he thought it would remain off to the side of the road until he passed, then it would raise its mowing deck and cross the bridge. "I've seen plenty times when [Highway Department tractors] get to bridges and stuff like that, they stop, they [raise their mowing decks], and they proceed on the other side of the road, going down the road, but they don't leave [the mowing deck] down and cross out there in front of somebody...."

Fred Wright Jr. operated the tractor for the Highway Department. He testified that on the day in question, he was cutting grass along the side of the roadway when he approached the bridge. Wright maintains he looked over his shoulder twice before easing onto the roadway so that he could cross the bridge. "When I got halfway across the bridge, I hear a horn. I could tell it was a big truck behind me. I was too scared to look back so I just grabbed hold of the wheel and was waiting for the impact."

The jury returned a verdict in favor of Howard in the amount of $193,445 in actual damages. This appeal followed.

LAW/ANALYSIS

The Highway Department's Statutory Exemption

The Highway Department argues the trial court erred by allowing the jury to decide its negligence because S.C.Code Ann. § 56-5-800 "place[s] the burden on the motoring public to avoid persons who are engaged in work upon a highway" and exempts Highway Department vehicles and personnel from the "statutory requirements for yielding the right-of-way, entering a roadway and other standard traffic laws" while "engaged in work upon a highway." Specifically, the Highway Department maintains that it "and Mr. Wright owed no duty to keep a proper lookout or other traffic duties," and, therefore, they could not be found negligent in causing the accident. We disagree.

Section 56-5-800 states, in pertinent part, that certain provisions of the Uniform Act Regulating Traffic on Highways "shall not apply to persons, motor vehicles and other equipment while actually engaged in work upon a highway...." While this statute has never been interpreted by a court of this State, its predecessor, § 46-290, Code of Laws 1962, was interpreted.² Our supreme court held that, by operation of § 46-290, the operator of a Highway Department motor grader "violated no statutory duty by stopping it in the north bound lane of travel and, under the facts which have been stated, no reasonable inference of negligence arises therefrom." Taylor v. South Carolina State Highway Dep't, 242 S.C. 171, 180, 130 S.E.2d 418, 423 (1963) (emphasis added).

The Taylor holding encompasses two distinct propositions. First, the court found that the Highway Department's grader did not violate the statutory prohibition against "stopping or parking a vehicle on the main traveled part of a highway" because § 46-290 exempts Department personnel and machinery from that prohibition while they are engaged in road work, as was the case with the grader. Secondly, the Court determined the grader's operator was not negligent under the circumstances of the case. The second proposition demonstrates that the court reviewed the record for actionable negligence on the part of the Highway Department despite its exemption from statutory traffic duties. It is not a pronouncement that the Highway Department owes no duty, statutory or otherwise, to the motoring public when engaged in work on a road. Taylor merely stands for the proposition that the duty owed by the Highway Department to the motoring public must be determined outside of the context of the traffic duties codified in certain sections of the Uniform Act Regulating Traffic on Highways.³

Ordinarily, the violation of a traffic statute establishes the per se negligence of the offending driver. Wise v. Broadway, 315 S.C. 273, 433 S.E.2d 857 (1993); Locklear v. Southeastern Stages, Inc., 193 S.C. 309, 8 S.E.2d 321 (1940); Seals by Causey v. Winburn, 314 S.C. 416, 445 S.E.2d 94 (Ct.App.1994)

. If the violation is the proximate cause of an injury or property damage, then the injured party may maintain a negligence action against the offending driver. Whitlaw v. Kroger Co., 306 S.C. 51, 410 S.E.2d 251 (1991); Ready v. Barnwell County, 167 S.C. 62, 165 S.E. 676 (1932); Ott v. Pittman, 320 S.C. 72, 463 S.E.2d 101 (Ct.App.1995). Obviously, the Highway Department must be exempt from this twostep analysis as its equipment and personnel must routinely violate traffic statutes to maintain our roadways. Section 56-5-800 provides the needed exemption and denies per se negligence to potential claimants which forces them to prove negligence in the specific context of roadway repair operations. In this action, the trial court properly refused to charge any traffic statutes thereby forcing the plaintiff to establish negligence within the context of the accident sub judice. Accordingly, the trial court did not err in refusing to direct a verdict for the Highway Department. See Steinke v. South Carolina Dep't of Labor, Licensing & Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999) ("The trial court must deny [directed verdict] motions when the evidence yields more than one inference or its inference is in doubt."); Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 513, 506 S.E.2d 497, 503 (1998) ("A directed verdict on liability is properly denied where there is any evidence, direct or circumstantial, justifying submission of the issue to the jury.").

Even if we were to find the trial court erred by not charging the specific language of § 56-5-800, the error would be harmless as the court's instructions encapsulated the content of § 56-5-800 and there is nothing in the record to suggest that omitting the statutory language affected the verdict. See Keaton v. Greenville Hosp. Sys., 334 S.C. 488, 498, 514 S.E.2d 570, 575 (1999)

("In order to find the error [in charging the jury] harmless, [an appellate court] must determine beyond a reasonable doubt that the error complained of did not contribute to the verdict."); McCourt v. Abernathy, 318 S.C. 301, 306, 457 S.E.2d 603, 606 (1995) ("Refusal to give a properly requested charge is not error if the general instructions are sufficiently broad to enable the jury to understand the law and the issues involved.").

Assumption of Risk

The Highway Department argues the trial court erred by failing to charge the jury on assumption of risk because Howard admitted to seeing the Highway Department's tractor working along the side of the road before he collided with it. We disagree.

Assumption of risk is an affirmative defense.⁴Creighton v. Coligny Plaza Ltd. Partnership, 334 S.C. 96, 512 S.E.2d 510 (Ct.App.1998); Wilson v. Childs, 315 S.C. 431, 434 S.E.2d 286 (Ct.App.1993); Broom v. Southeastern Highway Contracting Co., 291 S.C. 93, 352 S.E.2d 302 (Ct.App.1986). Affirmative defenses are waived if not pled. Varn v. South Carolina Dep't of Highways and Pub. Transp., 311 S.C. 349, 428 S.E.2d 895 (Ct.App.1993); D & D Leasing Co. v. David Lipson, Ph.D., P.A., 305 S.C. 540, 409 S.E.2d 794 (Ct.App. 1991). In the instant action, the Highway Department waived its right to assert the defense as it failed to raise it in its answer. See Rule 8(c), SCRCP ("In pleading to a proceeding pleading, a party shall set forth affirmatively the defense [of]... assumption of risk.").

Burden Shifting

Finally, the Highway Department argues the trial...