Ledford v. R. G. Foster & Co., 18913

CourtUnited States State Supreme Court of South Carolina
Citation167 S.E.2d 575,252 S.C. 546
Decision Date02 May 1969
Docket NumberNo. 18913,18913
PartiesArthur LEDFORD and Audrey Pool, Appellants, v. R. G. FOSTER & COMPANY, Respondent.

Jonathan Z. McKown, Gaffney, for appellants.

Ward, Howell & Barnes, Spartanburg, for respondent.

PER CURIAM.

In this tort action for damages, the appeal is from an order of the trial court, which will be reported herewith, granting the defendant-respondent's motion for judgment non obstante veredicto on the ground that the plaintiff Ledford was guilty of contributory recklessness and willfulness as a matter of law. We have carefully reviewed the record and the order of the lower court; we have also fully considered the briefs of counsel and the authorities therein cited, and conclude that the lower court correctly held that the plaintiff Ledford was guilty of contributory recklessness and willfulness.

The judgment of the lower court is, accordingly,

Affirmed.

Order of Judge SPRUILL follows:

The above entitled case was tried at Gaffney at the November, 1966, Term of Common Pleas and resulted in a verdict for $70,000.00 actual damages and $5,000.00 punitive damages. The plaintiff was represented by Mr. Jonathan Z. McKown and the defendant was represented by Messrs. Rufus M. Ward and H. R. Swink. At appropriate stages the defendant made motions for nonsuit and for directed verdict. After verdict the defendant made motions for judgment n.o.v. or, in the alternative, for a new trial or a new trial Nisi. These motions were marked 'heard' and were thereafter argued in Greenville on January 26, 1967, after a partial transcript of testimony was available.

The plaintiff, Arthur Ledford, brought this action to recover for injuries to himself and for medical expenses incurred in treatment of his minor son when both sustained injuries in a collision which occurred on May 19, 1964, involving an automobile operated by Ledford and a road sweeper owned by the defendant and being operated by its employee on South Carolina Highway No. 121 between the towns of Saluda and Johnston. Audrey Pool was joined as a party plaintiff by reason of an assignment of a one-hundredth interest in Ledford's claim in order to prevent change of venue to the Federal Court on grounds of diversity of citizenship. In discussing this case, the writer shall refer to Ledford as the plaintiff.

The collision out of which this action arises occurred at about 11:00 A.M. on a dry, clear day. The sweeper of the defendant was proceeding from Saluda towards Johnston and was engaged in sweeping the right side and shoulder of the highway. This sweeping operation stirred up a cloud of dust and the plaintiff, driving in the same direction, drove into this cloud of dust and collided with the sweeper with great force.

The defendant's motion for judgment n.o.v. is on three grounds. These are as follows:

'1. There is no evidence of probative value of negligence or recklessness on the part of the Defendant which operated as the proximate cause of any injuries or damages to Plaintiff.

'2. The only reasonable inference that can be drawn from the testimony is that any injuries or damages sustained by Plaintiff resulted solely from his own negligent and reckless conduct.

'3. The evidence shows beyond dispute that Plaintiff was guilty of contributory negligence and wilfulness as a matter of law which bars any right of recovery in this action.'

The plaintiff's complaint has two allegations of negligence, gross negligence and recklessness on the part of the defendant. These are as follows:

'(1) In operating the said equipment in the process of sweeping the highway of dirt without displaying any warning signs, signals or devices or providing a watchman to notify persons traveling the said highway that a dangerous situation existed, when the Defendant, R. G. Foster & Company, knew or should have known that the operation of the sweeper equipment constituted a hazard to the safety of others using the said highway.

'(2) In creating a cloud of dust at the bottom of a hill where visibility was limited to the traveling public, obscuring the road machinery in use on the said highway, without any warning whatsoever to the traveling public, when the Defendant knew, or should have known that the operation created a hazard and a sudden emergency to the traveling public.'

In addition to a qualified general denial the answer sets out the defense of contributory negligence or recklessness. The specifications are as follows:

'(a) In failing and omitting to keep a proper lookout for existing hazards on the highway and the presence thereon of the rotary broom of the Defendant, all being clearly visible to a distance of seven or eight hundred feet from the direction of approach of the car Plaintiff was operating;

'(b) In driving the car which Plaintiff was operating at a high, reckless and unlawful rate of speed under the existing conditions;

'(c) In failing to see and observe the dust in the highway and to stop or bring his car under control so that he could stop before running into, over, against and upon the rotary broom of the Defendant;

'(d) In driving into the dust which was obvious and had been obvious for seven or eight hundred feet at a speed greater than that in which visibility would allow his automobile to be stopped;

'(e) In failing to heed and observe the dust on the highway and bring his car under control and stop it before running into the dust and striking the rotary broom of the Defendant;

'(f) In that Plaintiff failed to keep his automobile under proper or indeed any degree of control;

'(g) In that Plaintiff failed to exercise even slight care to avoid an accident;

'(h) In that Plaintiff failed to stop before running into, over, against and upon the rotary broom of the Defendant.'

In considering the defendant's motions after verdict, it is, of course, axiomatic that the evidence is to be viewed in the light most favorable to the plaintiff. So viewed it is established and is, in fact, uncontradicted that the defendant had posted no signs and placed no watchman to warn that sweeping or other work was in progress on this particular stretch of highway. Choice McKinney, an eyewitness presented by the plaintiff, who was approaching from the opposite direction and saw the collision, testified that it looked like dust was boiling up out of the highway, that it rose to a height of six to eight feet, and that it covered half of the road. All parties agree that the highway was straight and that the collision occurred at the bottom at a hill or grade. Both the highway patrolman, a witness for the plaintiff and the plaintiff place the distance from the scene of the accident to the top of the hill or knoll, over which the plaintiff came, as approximately one- tenth mile. The highway patrolman places the debris resulting from the collision some eight feet to the right of the center line and two feet from the right side of the roadway. Both the sweeper and the automobile were totally demolished and came to rest eighty-five feet and forty-two feet respectively from the point of impact. The patrolman testified that there were no brake or skid marks.

The plaintiff testified that the day was dry and that he thought the sun was shining when he topped the hill and saw a cloud of dust at the foot of it. As stated, both the plaintiff and the patrolman estimated the distance from the top of the hill to the scene of the accident as one-tenth mile. The plaintiff said that the dust so covered the right side of the road that he could not see the sweeper but that the left side of the road was clear. He estimated that dust was rising eight feet to ten feet above the pavement. Adjacent to the scene of the accident and to the right of the highway was a pond which had been constructed but not yet filled, and the plaintiff stated that he thought the dust on the right side of the highway was drifting in from this pond site. According to the plaintiff's testimony, he drove to the left side of the highway with the intention of passing the dust on the clear side of the roadway. However, he says that at approximately four hundred feet from the dust he saw a truck approaching, turned back to the right, drove into the dust, and collided with the sweeper which he never saw.

The plaintiff testified that he was driving between fifty and fifty-five miles per hour when he topped the hill at approximately one-tenth mile from the dust. Then, or shortly thereafter, he took his foot off the accelerator but he never applied his brakes although they were good. His explanation for not applying his brakes was that he was afraid that the application of his brakes might throw him to the left side of the highway and into the path of the approaching truck. According to the plaintiff's testimony, his car slowed down little, if any, after he removed his foot from the accelerator because of the grade. From this it would follow, according to his testimony, that he was driving at fifty to fifty-five miles per hour when he drove into the cloud of dust and hit the sweeper. Photographs of the automobile and the sweeper, which are in evidence, indicate a terrific impact.

The defendant concedes that it had no signs or watchman to warn plaintiff or other members of the traveling public of the operation of the sweeper but the defendant urges that the failure to provide signs or watchman was not negligence or, if it were negligence, that it was not the proximate cause of the plaintiff's injury. Epps v. South Carolina State Highway Dept., 209 S.C. 125, 39 S.E.2d 198, and Taylor v. South Carolina State Highway Dept., 242 S.C. 171, 130 S.E.2d 418, both cases involving passengers, are persuasive authority to sustain this position. However, the writer prefers to base his decision on the question of contributory negligence or recklessness.

There are many cases in South Carolina on the question of contributory negligence or recklessness as a defense....

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2 cases
  • Cameron v. Westbrook, 1 CA-CV 10-0398
    • United States
    • Court of Appeals of Arizona
    • 7 Febrero 2012
    ...due to the erroneous suggestion that a person never has a duty to anticipate unusual or unlikely events); Ledford v. R.G. Foster & Co., 167 S.E.2d 575, 581 (S.C. 1969) (driver guilty of contributory recklessness and willfulness when, after observing a dust cloud one-tenth of a mile away, he......
  • Tate v. Sloan Const. Co., Inc.
    • United States
    • United States State Supreme Court of South Carolina
    • 9 Noviembre 1976
    ...to exercise reasonable care for his own safety and that his negligence proximately produced his injuries. Ledford v. R. G. Foster & Co., 252 S.C. 546, 167 S.E.2d 575 (1969). We therefore hold that he was contributorily negligent as a matter of law which bars his recovery against either In v......

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