Lawter v. War Emergency Co-op. Ass'n
Decision Date | 09 August 1948 |
Docket Number | 16120. |
Citation | Lawter v. War Emergency Co-op. Ass'n, 49 S.E.2d 227, 213 S.C. 286 (S.C. 1948) |
Parties | LAWTER et al. v. WAR EMERGENCY CO-OPERATIVE ASS'N et al. |
Court | South Carolina Supreme Court |
Carlisle, Brown & Carlisle and C. Yates Brown all of Spartanburg, for appellants.
Osborne Butler & Moore, of Spartanburg, for respondents.
This case, along with a companion case, has heretofore been before this Court on the pleadings.Massey et al. v. War Emergency Cooperative Association et al.,209 S.C. 29239 S.E.2d 907.
The action was brought to recover damages for the alleged wrongful death of J. T. Lawter who died almost instantly as a result of injuries received in a collision between a truck driven by him, to which was attached a trailer loaded with 35 bales of cotton, and a truck and tanker, loaded with 4,200 gallons of aviation gasoline, belonging to the War Emergency Cooperative Association.This collision occurred about 5:00 p. m. on June 23, 1944, at the intersection of U. S. HighwayNo. 25andState HighwayNo. 43.An award under the Workmen's Compensation Act was duly paid to the dependents of Lawter by his employer's insurance carrier Hardware Mutual Casualty Company, a partyplaintiff in this action.The defendantWar Emergency Co-operative Association is a motor carrier operating under a certificate issued by the South Carolina Public Service Commission.Its insurer American Fidelity & Casualty Company, was joined in this suit as a codefendant.
It is alleged in the complaint that the death of plaintiff's intestate was caused by the negligent operation of the oil tanker.This is denied by the defendants, who also interposed a defense of contributory negligence.At the conclusion of all the testimony, the Court below granted a motion by defendants for a directed verdict upon the ground that the only reasonable inference to be drawn from the evidence was that the plaintiff's intestate was guilty of contributory negligence as a matter of law.The correctness of this ruling is the principal question to be determined on this appeal.
State HighwayNo. 43 is a surface treated road approximately 23 feet wide.It connects the towns of McCormick and Saluda.U. S. HighwayNo. 25 is one of the principal arteries of travel in going north and south through the Piedmont section of South Carolina.The concrete portion is 18 feet wide.These two highways intersect at almost a right angle at a point about 12 miles north of Edgefield and 15 miles east of McCormick.Here No. 43 runs approximately east and west.HighwayNo. 25 is referred to in the testimony and briefs as running north and south, although according to the plats it runs in a slightly northwest and southeast direction.Both highways are straight and practically level.Approaching the intersection from the west on No. 43, there is a slight downgrade of 1.3% and approaching from the south on No. 25, there is a slight upgrade of 1%.A two-story building is located about 60 feet west of Highway 25 and 75 feet south of Highway 43, which at the time of the collision was being used by D. H. Williams as a combination residence, store and filling station.About 50 feet to the rear of this building there is a double garage.The area between the service station and the two highways is paved.The other corners of the intersection are clear and free of obstructions.Highway 43 runs through a short cut which ends, however, at a point about 200 feet west of the intersection.
The driver of the tanker approached this intersection from the south and plaintiff's intestate from the west.On the south side of Highway 43, at a point about 500 feet west of the intersection, there is a sign reading 'Stop Sign Ahead'.On the same side of the highway, about 350 feet west of the intersection, there is a junction sign, informing one traveling from the west that he is about to approach HighwayNo. 25.At the northwest corner of the intersection, about 10 or 15 feet from the edge of the pavement of No. 25, there is a stop sign.Plaintiff's intestate had a clear and unobstructed view of all these signs, which were of the standard type used by the State Highway Department, as he approached this intersection from the west.The only sign along Highway 25, in approaching the intersection from the south, is a junction sign on the right of the highway about 300 feet from the intersection.In approaching the intersection, the view across its southwest corner was obstructed to some extent by the buildings mentioned.However, when one traveling in an easterly direction along Highway 43 reached a point 140 feet west of the intersection, he had a view across the paved area in front of the filling station for a distance of approximately 165 feet south along Highway 25; when 50 feet from the intersection, he could see south along Highway 25 for a distance of 750 feet; and when he reached the stop sign, there was nothing to obstruct his view to the south.
Appellants offered no witnesses who saw the collision and relied largely on circumstantial evidence.There was only one other occupant of the cotton truck, O. B. Massey, who was also killed in the collision.Appellants' evidence can better be understood by first discussing that offered by respondents.
The driver of the tanker testified that, traveling alone, he was engaged in transporting gasoline from Savannah to the Greenville Air Base; that he had frequently gone over this route and was familiar with the road and the intersection in question; that he was driving about 30 miles an hour, at which speed the truck and tanker could have been stopped within a distance of approximately 50 feet; that in approaching this intersection, the sun was to his left and somewhat affected his vision; that when 75 or 100 feet south of the intersection, he'raised up in his seat to knock' the sun out of his eyes and looked to the right and to the left, but saw no vehicles approaching on Highway 43 or meeting him on No. 25; that he then 'settled down' in his seat and proceeded; that he did not see the cotton truck until 'we were just about to hit' whereupon, realizing a collision was inevitable and that there was danger of an explosion, he immediately swerved to the right to 'ease the blow'; that the left front of his truck collided with the right side of the cab of the other truck at a point on his right side of the road; that after the collision, his truck went off the pavement, proceeded in a northerly direction, went down a fill and stopped in a field; that he had his foot on the brake pedal but was unable to say whether he applied the brakes because he was dazed from a head injury which he sustained.This witness stated that he did not have sufficient time to estimate the speed of the cotton truck and was also unable to say whether it stopped before entering the intersection.
The only other eyewitness to the collision was a resident of Edgefield County who lived about six miles from this intersection.He testified that between 4:00 and 5 o'clock that afternoon he drove to the filing stating and store operated by Williams and parked near the front; that a few minutes before the collision he came out of the store, followed by Williams, and got in his car, which was facing south; that while talking to Williams, he first noticed the tanker when it was about 50 or 100 yards down the highway and watched it as it approached; that it was traveling on the right side of the pavement at a speed of between 20 and 30 miles an hour, which was not reduced as the intersection was approached; that as the tanker passed him, he first observed the cotton truck through his rear mirror as it 'was coming out of the intersection' and saw the vehicles collide, after which the tanker went off the pavement, rolled down a fill and stopped in a field.He said he was unable to estimate the speed of the cotton truck but it appeared to be moving slowly.His testimony is not entirely clear as to the position of the cotton truck when he first saw it.He first testified that he did not see this truck before it reached the 'stop' sign.Later he said that he first saw it when it was about 5 or 10 yards west of the edge of the pavement of Highway 25 and that it did not slow down or stop before entering the intersection.This witness further testified that Williams was standing by his car with his back to the intersection and did not see the collision.
The foreman of a highway department crew testified that on the afternoon of this accident they were working near Highway 25 at a point about six or seven hundred feet south of the intersection; that as the tanker passed, it was traveling at a moderate rate of speed on the right side of the pavement; that he paid no further attention to it until he heard the crash of the collision; and that be then took his crew to the scene and removed a number of bales of cotton scattered along the highway.
The only witnesses offered by appellants were a civil engineer who visited the scene about three years after the accident...
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