Jones v. American Fidelity & Cas. Co.

• Decision Date: 18 June 1947
• Docket Number: 15961
• Parties: JONES v. AMERICAN FIDELITY & CASUALTY CO. et al.
• Court: South Carolina Supreme Court

43 S.E.2d 355

210 S.C. 470

JONES v. AMERICAN FIDELITY & CASUALTY CO. et al.

No. 15961

Supreme Court of South Carolina

June 18, 1947

Babb & Babb, of Laurens, and Love, Thornton & Blythe, of Greenville, for appellants.

Blackwell Sullivan & Wilson, of Laurens, for respondent.

BAKER Chief Justice.

This action was instituted for the recovery of damages for the wrongful death of the respondent's intestate, alleged to have resulted from the joint and concurrent negligence of Robert W. Briggs, a taxicab driver, and of the appellant S H. Weathers, doing business as Johnston Hauling Company. American Fidelity & Casualty Company was joined as a party defendant by reason of its issuance of an insurance policy insuring the public against the negligence of Johnston Hauling Company. A judgment was entered against Briggs Weathers, doing business as Johnston Hauling Company, and American Fidelity & Casualty Company, in the sum of $3,500.00, but only the two last named have appealed. Therefore, hereafter, we will refer to the appellants as appellant.

The complaint of the respondent alleges that the appellant was guilty of negligence in connection with the collision between his truck and the taxicab of Briggs, which it is claimed resulted in the death of respondent's intestate, in the following particulars:

'1. In parking the Chevrolet trailer on East Main Street in the City of Laurens four (4) feet from the curb without any flares, lights or smudge pots or without giving any sign notice or warning that said truck was being parked, all of which was known to the defendant and not known to plaintiff's intestate.

'2. In parking said truck for the purpose of repairing a tire without having a look-out or any notice to warn operators of other vehicles on said street that said truck was so parked without taillights on the truck or without any notice or warning to the traveling public, all of which was known to defendant and not known to plaintiff's intestate.

'3. In that the defendant, his agent or employee, invited plaintiff's intestate, an aged and ignorant negro into a place of danger and peril on a misty, cloudy morning in the early part of the morning without giving him any notice or warning that no signs or notices had been given to the traveling public that said truck was so parked, when said trailer and truck was dark red color and hard to see at said time.

'4. In that the defendant, S. H. Weathers, his agents or employees, parked the truck and left same parked on East Main Street in the early hours of the morning on a much traveled street, all of which was known to the defendant, when there were several filling stations less than fifty (50) yards from said place where truck was so parked and when defendant, his agents or employees, could easily have driven entirely off of the Street.

'5. In that said truck owned by the defendant, S. H. Weathers, was parked on East Main Street in the City of Laurens in violation of the statutory laws of the State of South Carolina * * *.'

The answer of the appellant admits that at the time and place alleged in the complaint, the respondent's intestate (Lumas Jones) was struck and killed (or soon thereafter died) by a car owned and operated by Briggs, but denies that the injury and death of respondent's intestate were the proximate result of the alleged acts of negligence of the appellant; and denied any negligence. The answer also pleaded assumption of risk by respondent's intestate; and further, 'That even if it be admitted for the purpose of this defense only, that the defendant was guilty of one or more of the acts of negligence alleged, the said Lumas Jones was also negligent in placing himself in a position of peril (if such it was), and in not keeping any look-out or giving any warning, or taking any precaution for his own safety, and that the said negligence of Lumas Jones combined and concurred with the alleged negligence of this defendant, if any, as a direct and proximate cause of the injury and death of said Lumas Jones, and without which they would not have occurred.'

At the conclusion of the testimony in behalf of the respondent, the appellant made a motion for a nonsuit which was refused; and when all of the testimony was in, the appellant moved for a direction of verdict in his behalf, which motion was likewise refused.

Following the rendition of the verdict of the jury, appellant made motions for a new trial and for judgment notwithstanding the verdict. These motions were refused.

Appellant's first three exceptions relate to the failure of the trial Judge to grant his motion for a nonsuit, but it is unnecessary that we consider in the decision of this case any exceptions except those relating to the motion for a direction of verdict for the reason that 'if there was a failure of evidence to sustain the allegations of negligence at the time the motion for a nonsuit was made, and afterwards, when other testimony was introduced, it made a case proper for the consideration of the jury, the supreme court would not set aside an order refusing a motion for nonsuit, although erroneous when made.' Hicks v. Southern Railway, 63 S.C. 559, 41 S.E. 753, 754; Davis Bros. v. Blue Ridge R. Co., 81 S.C. 466, 62 S.E. 856; Hunt v. Atlantic Coast Lumber Corporation, 101 S.C. 64, 85 S.E. 229, and various other cases prior to, and since the above-cited cases were decided. And if the appellant's motion for a direction of verdict should not have been granted, the amount of the verdict not being questioned as to excessiveness, then the trial Judge should have also refused the last two motions mentioned.

The testimony discloses that on the morning of the accident (September 14, 1945) a truck of the appellant, in the control of and operated by two of his employees, was parked on East Main Street in the City of Laurens so that the rear of the truck (occasionally referred to as a trailer) was immediately under one of the city's street lights, which light was on the top of an iron post or pole set at the edge of the sidewalk nearest the vehicular portion of the street. The right rear wheel of the truck was, lacking one inch, four feet from the curb of the street, so parked for the purpose of being able to remove therefrom a tire on said wheel which had been punctured. Such manner of parking at the place above indicated was in violation of Section 1623, subsection 38 of the Code of 1942, but as will be obvious when the additional facts of this case are related, such negligence could not possibly have contributed as a proximate cause to the injury and resulting death of the respondent's intestate.

This truck was parked at the place aforesaid, at about daybreak. The driver of the truck and his helper thereon (incidentally the father-in-law of the driver) had succeeded in changing the punctured tire, that is, substituting a spare tire therefor, when it became necessary to lift the heavy punctured tire up into the truck, and as one of the men on the truck had to be up in the truck to receive and place this heavy tire when it was hoisted to such position, more help was needed because neither the driver of the truck nor his helper, without assistance, could lift this heavy tire into the truck. It was then daylight,...