Lusk v. State Highway Dept.

• Decision Date: 14 July 1936
• Docket Number: 14332.
• Parties: LUSK v. STATE HIGHWAY DEPARTMENT. MONROE v. SAME.
• Court: South Carolina Supreme Court

186 S.E. 786

181 S.C. 101

LUSK v. STATE HIGHWAY DEPARTMENT.

MONROE v. SAME.

No. 14332.

Supreme Court of South Carolina

July 14, 1936

Appeal from Common Pleas Circuit Court of Greenville County; T. S Sease, Judge.

Two actions, one by Annie E. Lusk, as administratrix of the estate of Dewey Lusk, deceased, and the other by Nellie Monroe, as administratrix of the estate of R. A. Monroe, Jr. deceased, against the State Highway Department. From adverse judgments, defendant appeals.

Reversed and remanded.

John M Daniel, Atty. Gen., and J. Ivey Humphrey and M. J. Hough, Asst. Attys. Gen., and Blythe & Bonham, of Greenville, for appellant.

J. Robert Martin, of Greenville, for respondents.

BAKER Justice.

These two cases arose out of the same circumstances, were tried together in the circuit court, and come to this court as one record. We shall therefore, herein, refer to both plaintiffs-respondents as respondent.

The action was brought under section 5887, Code of 1932, and grew out of an accident resulting in the fatal injury of respondent's intestate, and which occurred on a state highway on February 18, 1934.

Late Saturday night, or about 12:30 a. m. February 18, 1934, five young men, included in that number being the two young men for whose deaths these actions were brought, left Honea Path, and went to a tourist cabin camp in or near the town of Princeton, a distance of about eight miles, for the purpose of engaging in a poker game. The car used to travel in was a Pontiac coupé, owned and driven by a Mr. Greer. They carried with them a half-gallon jar of liquor and spent the remainder of the night, or, that is, until practically daybreak, playing poker and drinking liquor. On the return trip from Princeton to the place of the accident, three of the men occupied the seat, a fourth sat in the lap of one of the men on the seat, and the fifth, a young man by the name of Black, the only survivor, laid down upon the wide place at the back of the seat intended for the purpose of placing baggage. When Greer, the owner and driver of the car, reached the top-soil road, leaving Highway No. 25, in the direction of Honea Path, this top-soil road being the direct road between said towns, and being under the supervision, control, and management of appellant, he commenced to travel at a high and reckless rate of speed, against which other members of the party protested to no avail. The road was downgrade in the direction they were traveling, and particularly as it neared the point of accident, where there was a sharp curve; but there were several sharp curves along the route of the road. The car was being driven at a speed of between fifty-five and sixty miles an hour as it approached and reached the curve at which the accident took place, and at this point skidded off the road, traveled through the air for several feet, and struck a large tree five and one-half to six feet from the ground, with fatal results as aforesaid. At this curve and to the right of the road in the direction in which the car was traveling, that is, going from Princeton to Honea Path, is a mound or hill of earth and rock, and to the left a precipice of the depth of thirty feet. It was over and into this precipice that the car skidded or was driven.

Respondent bases her cause of action upon alleged defects in the state highway and because of alleged negligent repair of the said highway.

Respondent's printed brief sets forth the delicts as follows:

"(1) Scraping from outer edge to center, causing incline to precipice.

(2) Placing and allowing loose sand and gravel on road oval shaped and inclined to precipice, causing skidding.

(3) Maintaining dangerous abrupt curve on heavy down grade pointing to 30-foot precipice without guard rails or adequate notice to the traveling public.

(4) Allowing 30-foot precipice to remain open at side of highway without light (such as reflectors) or warning.

(5) Negligence in maintaining highway higher on inside of curve and lower on outside of curve, making road inclined to precipice instead of inclined to inner side of curve."

But as stated in appellant's printed brief, the particulars in which these delicts are charged, freed from repetition and rhetorical verbiage, are: "That the road was scraped from each side to the center, so as to produce a turtle-back effect, and thus incline the road to slope towards a thirty-foot precipice along which the road ran; that loose sand was allowed to accumulate on the road; that adequate signs of a sharp curve were not provided and that no planks, guard rails or warning signs were placed along said precipice."

The answer of appellant, in addition to a general denial, pleaded that respondent's intestate was engaged in a common enterprise with the driver of the automobile in which he was riding and in company with four others, all crowded in a coupé automobile, were traveling along said highway at a negligent, reckless, and unlawful rate of speed, and that his death was due to his own negligence and the negligence of the driver of the automobile, and not to any negligence on the part of appellant.

The exceptions do not raise any question if respondent's intestate was engaged in a joint or common enterprise with the driver of the car. The trial judge apparently charged correctly the law as laid down in this state as to what constitutes a common or joint enterprise.

The leading cases in this state dealing with the subject are Bober v. Southern Ry. Co., 151 S.C. 459, 149 S.E. 257, and Key v. Carolina & N.W. Railway Co., 165 S.C. 43, 162 S.E. 582.

It is unnecessary to discuss the fact of these cases or other cases in this state on the same point. It is sufficient to state that our court heretofore has approved the general rule that negligence of the driver of a motor vehicle cannot be imputed to a person riding in the car unless such person controls the driver or had the right to do so. This means that the court has in effect limited the doctrine to cases where the driver was an agent or servant of the person riding in the automobile. It is difficult to understand the logic of the decisions which have limited the defense of common or joint enterprise to such a narrow sphere.

It is the view of the writer of this opinion that where two or more persons plan a trip with a common purpose of pleasure or profit, and are familiar with the conditions which obtain or may obtain in connection with the trip, and with the means of transportation that will be employed, and with the person who will have control of the vehicle in which they are riding, and voluntarily take the trip, knowing the dangers and hazards that may be incident thereto, they are engaged in a joint enterprise, and the negligence of the person in control of the vehicle is and should be imputed to each person engaging upon the trip and riding in the vehicle used.

Some courts have held that the negligence of the driver under the conditions aforementioned is imputable to those riding in the vehicle where each joins in sharing the expense, but the writer hereof cannot see that this adds to the nature of the enterprise, or makes it more of a common enterprise than it would otherwise be under the facts and circumstances aforementioned.

We realize that our view of what constitutes a common or joint enterprise as hereinabove set forth does not comport with the majority of the decisions, but we are convinced that it is supported by logic and reason. We also realize that what we have said on the subject is obiter dictum, and the writer assumes the responsibility therefor.

At the conclusion of testimony in behalf of respondent, appellant moved for a nonsuit, which motion was refused. At the conclusion of all of the testimony, appellant moved for a directed verdict, which motion was also refused.

Appellant comes to this court on eighteen exceptions, relating to the admissibility of testimony, statements and comments of the trial judge in passing upon the relevancy and admissibility of testimony objected to, his failure to grant the motions for nonsuit and directed verdict, and his charge to the jury.

The motions for nonsuit and directed verdict were based upon the following grounds:

"1st. There is no evidence of actionable negligence on the part of the defendant.

2nd. (Which is included in the first place, but merely amplifies it.) Even if there was any negligence on the part of the defendant has been proved (proven?), there is no evidence that the negligence proven was the proximate cause of the death of the plaintiffs.

3rd. The testimony admits of no other inference than that such negligence was not the proximate cause of the death.

4th. That plaintiff has failed to show, as the Statute requires him to show, that the death of his intestate was not due to his own contributory negligence.

5th. The evidence is susceptible of no other reasonable inference than that the death of plaintiff's intestate was the proximate result of the negligence in the driving of the automobile in which he was riding."

Appellant's exceptions 1 and 2, relating to the refusal of the trial Judge to strike from the record the testimony of plaintiff's witness James A. Cox, who, on cross-examination, stated that he had come near overturning his automobile at a point below the curve at which the accident occurred and the remarks of the trial judge in the presence of the jury, will be considered together. On cross-examination of the witness Cox, he was asked if traveling that road going towards Honea Path around the curve at which it is said the car (the car in which respondent's intestate was riding) started to skidding off, if there was any reason why a person driving an automobile could not round that curve without getting...