Johnson v. Finney

• Decision Date: 19 August 1965
• Docket Number: No. 18392,18392
• Citation: 143 S.E.2d 722,246 S.C. 366
• Court: South Carolina Supreme Court
• Parties: Harold JOHNSON, Respondent, v. Claude S. FINNEY, Claude S. Flnney, Jr., and Dickerson, Inc., of which Claude S. Finney and Claude S. Finney, Jr., are, Appellants.

Page 722

143 S.E.2d 722

246 S.C. 366

Harold JOHNSON, Respondent, v. Claude S. FINNEY, Claude S. Flnney, Jr., and Dickerson Inc., of which Claude S. Finney and Claude S Finney, Jr., are, Appellants.

No. 18392.

Supreme Court of South Carolina.

Aug. 19, 1965.

Smith & Moore, William W. Doar, Jr., Arthur M. Flowers, Jr., Georgetown, for appellants.

Patrick J. Doyle, Cecil W. Schneider, Georgetown, for respondent.

MOSS, Justice.

Harold Johnson, the respondent herein, brought this action against Claude S. Finney, Claude S. Finney, Jr., the appellants herein, and Dickerson, Inc., to recover damages for personal injuries sustained when he was struck by an automobile while walking along the western side of U. S. Highway No. 17 at a point on said highway about 9/10 of a mile north of the northern entrance to Pawleys Island. The automobile which struck Johnson was owned by Claude S. Finney and was being operated at the time by his son, Claude S. Finney, Jr., it being asserted he was, under the family purpose doctrine, and agent of his father.

It is alleged in the complaint that on August 5, 1961, at about 1:00 A.M., the respondent, while walking in a southerly direction, which was thereafter amended to allege that he was walking in a northerly direction, on the western side of U. S Highway No. 17, was injured when struck by an automobile driven by Claude S. Finney, Jr. It is then alleged that the respondent's injuries were caused by and resulted from the joint and concurrent negligent, careless, reckless, willful and wanton acts of the appellants, and Dickerson, Inc., who was then performing certain construction and repairs to the said highway.

The appellants, by their answer, set forth (a) a general denial, (b) that the injuries to the respondent were due to and caused b either his sole or contributory negligence, carelessness and willfulness, (c) a denial that the automobile in question was being used under the family purpose doctrine, and (d) that the respondent's injuries were caused by the negligent and willful acts of Dickerson, Inc.

This case came on for trial before the Honorable James Hugh McFaddin, presiding Judge, and a jury, at the February 1964 term of the Court of Common Pleas for Georgetown County and resulted in a verdict in favor of the respondent for $12,500.00 actual damages. During the course of the trial, the respondent, for a consideration of $1,500.00 entered into a 'covenant not to sue' Dickerson, Inc. By stipulation the consideration for the aforesaid covenant was deducted from the amount of the verdict, leaving the judgment of $11,000.00 to be paid by the appellants. At appropriate stages of the trial, the appellants made motions for a nonsuit and directed verdict in their favor and after the verdict for judgment non obstante veredicto and, in the alternative, for a new trial. These motions were refused and this appeal followed.

The first question for determination is whether the trial Judge erred in failing to grant the aforesaid motions of the appellants upon the ground that the only reasonable inference to be drawn from the testimony was that the respondent was guilty of contributory negligence and willfulness so as to bar him of recovery.

The question of whether or not there was error in refusing the motions of the appellants for a nonsuit, directed verdict and judgment non obstante veredicto and alternatively for a new trial, requires us to consider the testimony and the reasonable inference to be drawn therefrom in a light favorable to the respondent. If more than one reasonable inference can be drawn The case must be submitted to the jury. However, if the evidence is susceptible of only one reasonable inference, the question is no longer one for the jury but one of law for the court. Ordinarily, contributory negligence and willfulness is an issue for the jury and it rarely becomes a question of law for the court. If the only reasonable inference to be drawn from all the testimony is that the respondent was guilty of negligence and willfulness and such contributed as a proximate cause to his injury, then it would be the duty of the trial Judge to order a nonsuit or direct a verdict. If the inferences properly deducible from the evidence are doubtful, or tend to show both parties guilty of negligence or willfulness, and there may be a fair difference of opinion as to whose act proximately caused the injury complained of, then the question must be submitted to the jury. West v. Sowell, 237 S.C. 641, 118 S.E.2d 692.

U. S. Highway No. 17 runs generally north and south. At the place where the respondent was struck, the highway is straight and level for three miles to the north and three-quarters of a mile to the south. The road on which the automobile of the appellants was being operated was a two lane highway and was being resurfaced with black asphalt. No white dividing line had yet been painted on the highway. There was under construction to the west of this road an additional two lane highway with a median strip separating the two highways. The median strip in this vicinity was covered with a mound of dirt approximately three to four feet high, being used in the construction of the highway. This dirt extended to the edge of the pavement of the road upon which Claude S. Finney, Jr. was operating the motor vehicle here involved. It appears that it had been raining off and on all day and that some of the dirt had washed onto the paved portion of the road. At the time the respondent was struck by the Finney automobile it was very dark and a misting rain was falling.

The respondent lived on the western side of U. S. Highway No. 17. He testified that he was a laborer and on the afternoon before his injury he was paid off by his employer at a community store and was given, along with the other employees, a can of beer. This took place about 4:30 in the afternoon. After attending to some personal matters the respondent arrived at his home at about 6:00 P.M. He testified that he washed up, dressed and walked to Eddie Ellis's place, which is located across and about three blocks up the highway and there, along with some others, he drank another beer. He left this place and went to McKenzie's Motel, which is located diagonally across and on the opposite side of the highway from respondent's home. The respondent left McKenzie's and arrived at his home at about 11:00 P.M. and then discovered that he had only a few cigarettes and decided to walk back across to McKenzie's to purchase some. It began raining after respondent arrived at McKenzie's and it was necessary for him to wait there, before returning home, until the rain stopped. He left McKenzie's to return to his home and walked across U. S. Highway No. 17 to the western edge thereof and attempted to cross the mound of dirt covering the median and when he found it muddy and impossible to walk upon and across, he turned to his right, walking north on the left side of the said highway facing motor vehicles coming south thereon. It was the purpose of the respondent to go north along the western edge of the highway to a place where there was an opening in the dirt piled on the median. He testified that when he had gone about fifteen feet he saw a car coming on the driver's right of the highway and he attempted to jump over the mound of dirt to avoid being struck by the car. He says at that time 'it just hit me and throwed me up in here back on the mound.' He testified as was he walking north that he was 'right on the highway edge I would say close as I could be, it could be paved or it could be sand, I don't know which.' When asked how far he was from the dirt embankment he said 'not over a step' and when asked if he was three or four feet on the paved portion of the highway, his answer was, 'I don't think it was one feet.' In response to a question as to what he had had to drink, the respondent relied 'I had two cans of beer' and 'that's all I had.'

The respondent testified that when he went out to cross U. S. Highway No. 17, he looked to the south and no car was approaching. He said he knew a car was approaching from the north. The testimony does not reveal how far to the north the Finney car was but it is reasonable to infer from the testimony that it was a sufficient distance to give the respondent enough time to cross the highway and to walk in a northerly direction on the left side thereof, a distance of fifteen feet.

A deputy sheriff of Georgetown County investigated this accident. He testified that the highway was under construction and there were signs up and down the highway warning everybody that such was the case. He described the neighborhood as being a residential area. He found the respondent on the western side of the highway 'with his body laying partially on the shoulder and his leg extended out in the highway.' This witness would not say how far the respondent's leg extended into the highway. He said that he could smell the odor of alcohol on the respondent. A highway patrolman and the physician who attended the respondent stated that they smelled the odor of alcohol on the respondent. The ambulance driver who helped bodily to lift the respondent into the ambulance said he did not detect the odor of alcohol on him.

Eddie Ellis, a taxi driver and the operator of a small motel, testified that he went to McKenzie's Motel between 12:00 and 1:00 o'clock on August 5, 1961 and saw the respondent sitting at a table in the restaurant of the said motel and there were no alcoholic beverages on the table. Ellis was the one who summoned the deputy sheriff who investigated this accident. This witness testified that he returned to the scene of the collision after summoning the officer and saw the position in which the respondent was lying. He fixed the position of the respondent's body as being partly on the dirt of the median and with his feet on the pavement.

Elizabeth McKenzie, who operates McKenzie's Motel,...