Jumper v. Goodwin

• Citation: 239 S.C. 508,123 S.E.2d 857
• Decision Date: 07 February 1962
• Docket Number: No. 17871,17871
• Parties: Mrs. Gladys R. JUMPER (Ruple), Respondent, v. Talmadge GOODWIN, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 857

123 S.E.2d 857 239 S.C. 508 Mrs. Gladys R. JUMPER (Ruple), Respondent,
v.
Talmadge GOODWIN, Appellant. No. 17871. Supreme Court of South Carolina. Feb. 7, 1962.

Page 858

[239 S.C. 510] E. Pickens Rish, Lexington, Nelson, Mullins, Grier & Scarborough, Columbia, for appellant.

R. Milo Smith, Lexington, Gressette & Gressette, St. Matthews, for respondent.

BUSSEY, Justice.

This action was brought to recover damages for personal injuries and property damage resulting from a collision between respondent's automobile and a truck owned by the appellant, and being operated by his agent and servant. The collision occurred around noon on April 19, 1959, about one mile north of the town limits of Swansea, South Carolina, in Lexington County, at the intersection of Highway 321 and an unmarked, unpaved county road leading into the [239 S.C. 511] highway from the east at approximately a right angle. The respondent was driving in a southerly direction on Highway 321 and when she was attempting to pass appellant's truck, the driver thereof suddenly turned to the left into the path of respondent's automobile.

At the conclusion of the testimony the appellant moved the court for a directed verdict, the basis of the motion being the contention that the only reasonable inference to be drawn from the testimony was that the respondent was guilty of contributory negligence as a matter of law, which contributory negligence contributed as a direct and proximate cause to the accident.

The court overruled appellant's motion on two grounds; holding first that if the plaintiff was guilty of negligence, whether such negligence was the proximate cause of the accident was a question for the jury, and, secondly, that there was evidence from which the jury could conclude that the defendant was guilty of willfulness or recklessness, in which event, simple contributory negligence would not be a bar.

The jury rendered a verdict in favor of the respondent for thirty-six hundred dollars actual damages, after which the appellant moved for judgment notwithstanding the verdict on the same basis as the motion for a directed verdict, but, on the hearing of this motion, since the trial judge had considered the question of willfulness in his ruling, also argued that if the appellant was guilty of any willfulenss under the undisputed facts, the respondent was also guilty of contributory willfulenss. This motion was refused by the trial judge and the appeal is from his refusal.

Although the exceptions are several in number, they really raise only one question, as follows:

Could any other reasonable inference be drawn from the testimony in this case than that the respondent was guilty of either contributory negligence or contributory willfulness as a matter of law so as to bar her recovery against appellant?

[239 S.C. 512] In considering the refusal of the trial judge to grant a motion for judgment non obstante veredicto, it is, of course, the

Page 859

well settled rule in this State that not only the testimony but all reasonable inferences therefrom must be taken most strongly against the appellant and considered in the light most favorable to the respondent. Wynn v. Coney, 232 S.C. 346, 102 S.E.2d 209; Melton v. Ritch, 231 S.C. 146, 98 S.E.2d 509; Cannon v. Motors Ins. Co., 224 S.C. 368, 79 S.E.2d 369.

Viewed in this light, the facts of this case, supported by evidence, are as follows. The collision occurred in or very near the intersection of U. S. Highway 321 and an unimproved, unpaved county road, there being on Highway 321 no yellow no-passing line or other sign to indicate an intersection. The evidence leaves no doubt that the respondent was guilty of negligence per se in violating Sec. 46-388 of the 1952 Code, which provides:

'No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

'* * * (2) When approaching within 100 feet of or traversing any intersection * * *.' Reese v. National Surety Corp., 224 S.C. 489, 80 S.E.2d 47.

The respondent was familiar with the area, living in the community and knew of the existence of the intersecting dirt road, but was not thinking of it as she approached the scene, there being two other small dirt roads in the immediate vicinity, one of which leads to a private residence and the other of which leads into a cemetery.

Highway 321 is straight and level at the point except that there is a slight rise some distance north of the scene of the collision, estimates of the distance of the crest of this rise from the scene being expressed by the witnesses in hundreds of yards. As the respondent came over the crest of this rise, she saw appellant's truck ahead of her. At this time she was traveling between 50 and 55 miles per hour, the prima facie speed limit of 55 miles per hour being applicable[239 S.C. 513] at the location. The appellant's truck was then traveling at between 30 and 35 miles per hour and there were no other vehicles in sight in either direction. Due to the difference in the speeds of the vehicles, respondent overtook appellant's truck and when she was some thirty to thirty-five yards to the rear thereof, she turned on her blinker or turn indicator lights for the purpose of passing appellant's truck, and as she was about to pass, the driver of appellant's truck, without looking back and without giving any signal of any kind, made an abrupt left turn, following which the vehicles collided.

The respondent testified that immediately following the collision, she asked the driver of the truck, 'Why didn't you give a signal?', and that he said, 'I was in a...