Lawless v. Fraser
|137 S.E.2d 591,244 S.C. 501
|05 August 1964
|South Carolina Supreme Court
|Martin D. LAWLESS, Respondent, v. E. M. FRASER, Appellant.
Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.
Hubert E. Nolin, A. F. Burgess, Greenville, for respondent.
This action was instituted by the plaintiff to recover damages for personal injuries sustained by him while assisting in starting the defendant's stalled automobile. The plaintiff alleged that he was assisting in the operation of pushing the defendant's automobile with a truck and fell from the bumpers of the vehicles, where he was standing, when the defendant negligently and recklessly started his car without giving warning of such action. Upon the trial of the case, the plaintiff recovered a judgment for actual damages and the defendant has appealed.
The appeal is from the refusal of the lower court to grant the defendant's timely motions for a non-suit and directed verdict. The questions to be decided are (1) whether there was any evidence of actionable negligence or recklessness on the part of the defendant and (2), if so, whether the plaintiff was guilty of contributory negligence or recklessness as a matter of law. It is well settled that, in our determination of these issues, we are required to consider the testimony and the reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. Our review of the testimony is so limited.
The plaintiff was employed as an attendant at the Fred Jones Esso Station in Greenville, South Carolina. The defendant was a customer of this service station. On the morning of December 2, 1960, the defendant went to the station for assistance in starting his automobile, and the plaintiff was sent by his employer with the defendant to the latter's home for such purpose. They were unable to start the motor with a booster battery and it was then discovered that the car was out of gasoline. After a call to the station, another employee, Carver, came to the scene in a service truck and put the needed gasoline in the tank of defendant's car. Further efforts to start the motor with the booster battery failed and, at the suggestion of the defendant, an attempt was made to start it by pushing the vehicle down an incline into the street, with the plaintiff at the wheel and defendant and Carver pushing; but the motor again failed to start. The defendant then told the plaintiff that he was in a hurry to get to his office and requested that his car be pushed with the service truck to get it started. The truck was accordingly placed immediately behind the defendant's car for that purpose. When the vehicles were so aligned, the defendant noticed that the bumpers were not level with each other, the bumper on the defendant's automobile being higher than the one on the truck. The defendant then requested the plaintiff to stand on the bumper of the stalled vehicle so that the bumpers would meet evenly, promising to give to the plaintiff a signal by hand and voice before he attempted to start his car. The signal or warning was to be given so that the plaintiff could shift at that time to the bumper of the truck for safety. Following such request and promise by the defendant, the plaintiff stood upon the bumpers, facing so that he could see the signal to be given by the defendant, with one foot on the back bumper of defendant's car and the other on the front bumper of the truck, and holding with his hands. The defendant was in the driver's seat of his stalled car as Carver, who was driving the service truck, began pushing. The defendant's car was pushed by the truck for about a half block up the street when, suddenly and without any notice or warning, the defendant started it and pulled away from the truck. This caused the plaintiff to fall in the path of the truck and sustain serious injury.
The testimony further shows that the plaintiff had worked as a service station attendant for approximately thirteen years, during which time he had experience in starting stalled automobiles, in some instances by pushing them with another vehicle.
First, the defendant contends that the testimony failed to show any actionable negligence or recklessness on his part. It is argued that the plaintiff knew from his experience in such matters that, when the defendant's automobile started, it would become separated from the truck; and that the defendant could not have foreseen exactly when the motor of his car would become activated, so as to make it possible for him to give the plaintiff warning of such fact. From this, the defendant concludes that there could have been no duty on the defendant to give any warning...
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