Leek v. New South Express Lines
| Decision Date | 16 February 1940 |
| Docket Number | 15017. |
| Citation | 7 S.E.2d 459,192 S.C. 527 |
| Parties | LEEK v. NEW SOUTH EXPRESS LINES. |
| Court | South Carolina Supreme Court |
Tobias & Turner, of Columbia, for appellant.
Frank A. Graham, Jr., and Paul A. Cooper, both of Columbia, for respondent.
On February 7, 1938, about 6:30 in the morning, a heavily loaded truck of the defendant and a passenger automobile operated by plaintiff's decedent, B. D. Russell, collided on U. S Highway No. 1 at a point four miles East of the town of Leesville, in Lexington County. At the time of the accident the vehicles were traveling in opposite directions, the truck going West, towards Augusta, and the car going East, toward Columbia. The car of the deceased was driven and occupied by him alone. The truck of the defendant was operated by its agent and servant, one Winningham, who also was alone. As a result of the accident Russell sustained injuries from which he died within a half hour, without having regained consciousness.
This action for the recovery of damages was brought against the defendant by the administrator of Russell, under Lord Campbell's Act, for the benefit of the wife and child of the deceased. There are several specifications of negligence but the case was tried upon the allegation and theory that the defendant's agent and servant drove the truck to its left of the centre line of the highway and into the automobile occupied by the decedent, and that the death of Mr. Russell was caused directly and proximately by this wrongful and negligent act. The trial resulted in a verdict for the plaintiff for actual damages.
Error is assigned to the lower Court because of its refusal to grant a nonsuit and directed verdict in favor of the defendant. The motions therefor were made upon the ground that there was a total failure of evidence tending to show actionable negligence on the part of the defendant. Later, a motion for a new trial upon this ground, and upon the additional ground that the death of plaintiff's intestate was caused by his own contributory negligence, was denied.
The truck driver was the only surviving eyewitness to the accident. In the proof of his case the plaintiff was necessarily confined to circumstantial evidence alone, and it is the contention of the defendant that this evidence completely failed to prove any actionable negligence on its part, but on the contrary shows that the death of Mr. Russell was brought about by his contributory negligence.
The plaintiff's witness, J. T. Miller, testified that on the morning in question he was driving his car en route to the city of Columbia, where he had employment as a carpenter that the morning was cold and foggy; that he turned into the highway shortly before 6:30 o'clock, and saw the tail light of another car ahead of him, which it later developed was the car driven by Russell, also headed toward Columbia. He said that both cars were traveling at about thirty miles per hour, and that throughout the six miles he followed the Russell car, until he lost sight of it a few seconds before it collided with defendant's truck, its tail light showed it to be on the right of the centre of the road.
Just before the place of the accident is reached the grade of the road rises over a low hill, and then curves to the left, in the direction in which the Russell car and the Miller car were traveling. Miller said that he lost sight of the tail light of the Russell car when it passed over the crest of this hill and entered upon the curve. He did not see it again until after it had collided with defendant's truck at a point about one hundred yards beyond the hill. He was close enough to hear the crash of the collision, and as he came within about 75 yards of the place where the vehicles came together, the defendant's truck, moving very slowly and apparently about to stop, met and passed him. When the witness reached the scene of the accident a few seconds thereafter, he found the car of the decedent upright on its extreme right hand side of the highway, practically in the ditch, with its left front wheel still on the paved portion of the road. Mr. Russell was unconscious, and, as stated, died within a half hour at the Leesville hospital. This witness stated that when the rear light of the Russell car disappeared from his view over the brow of the hill, the car was on the right hand side of the centre of the highway. According to Miller, Mr. Winningham, the truck driver, after parking his truck, reached the scene shortly after he did, and requested him to take Mr. Russell to the Leesville hospital, but he declined because the back seat of his car was out, and his tools filled the space. He then left for Columbia, before the injured man was moved.
Plaintiff's witness, J. H. Miller, was riding in the automobile with his cousin, the witness, J. T. Miller, and corroborated the latter's testimony as to the speed of the Russell car, and with respect to the fact that the Russell car was on its right of the centre of the highway as shown by the rear light, and continued so until it was lost to sight as it crossed over the hill. This witness also testified that when he and his cousin reached the scene of the accident the car of the decedent was on its extreme right hand side of the highway.
Q. P Lybrand was a witness for the plaintiff. He lived about 200 yards from the scene of the accident, and, accompanied by Mr. V. M. Risinger, reached the spot within a few minutes after it occurred. With the help of Risinger and Winningham, he extricated Mr. Russell from his wrecked automobile, and at the request of Mr. Winningham, he and Risinger took him to the hospital at Leesville in Mr. Lybrand's car, after which they returned immediately to the place of the collision. Mr. Lybrand corroborated the other witnesses as to the position of decedent's car, and testified as to the physical condition of the automobile and the truck, and the angle at which they came together. He said that the glass from the left hand window by the driver's seat had been broken out of the automobile; that the glass had been broken from the window on the left hand side by the driver's seat on the truck, and that the rear view mirror on that side was broken and pressed back. He further said that while fragments of glass were scattered all over the road, the majority of it was from one and a half to three feet over the centre of the highway,--that is, on Mr. Russell's side of the road. He stated that he looked for tracks of the truck...
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