McClure v. Price

• Citation: 300 F.2d 538
• Decision Date: 19 March 1962
• Docket Number: No. 8396.,8396.
• Parties: Verna Wofford McCLURE, and Verna Wofford McClure as Ancillary Administratrix of the Estate of Sanford A. McClure, Appellee, v. D. S. PRICE and Watson W. Kelly, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

300 F.2d 538 (1962)

Verna Wofford McCLURE, and Verna Wofford McClure as Ancillary Administratrix of the Estate of Sanford A. McClure, Appellee, v. D. S. PRICE and Watson W. Kelly, Appellants.

No. 8396.

United States Court of Appeals Fourth Circuit.

Argued October 18, 1961.

Decided March 19, 1962.

COPYRIGHT MATERIAL OMITTED

J. W. Cabaniss, Charleston, S. C. (Hope & Cabaniss, Charleston, S. C., on the brief) for appellants.

Ben Scott Whaley, Charleston, S. C. (Nathaniel L. Barnwell and Norman W. Stevenson, Charleston, S. C., on the brief) for appellee.

Before BOREMAN and BRYAN, Circuit Judges, and BARKSDALE, District Judge.

BOREMAN, Circuit Judge.

These two actions, growing out of a collision on the morning of June 30, 1959, between a passenger automobile and a tractor-trailer, were consolidated for trial before a jury. Verna Wofford McClure, the widow of Sanford A. McClure, brought her individual action against D. S. Price, the owner of the tractor-trailer, and its driver, Watson W. Kelly, for damages for her personal injuries. The McClures resided in Tennessee and Mrs. McClure was there appointed administratrix of the estate of her deceased husband. Subsequently she was appointed in South Carolina as ancillary administratrix of said estate and, in that capacity, instituted an action against the same defendants to recover damages for the unlawful death of her husband. Both actions are based on the alleged negligence of Kelly in the operation of the tractor-trailer. A jury returned a verdict in each case in the amount of $20,000. Motions by defendants for judgments notwithstanding the verdicts or, in the alternative, for new trials, were overruled. Defendants charge that this disposition of the motions was error.

As is not unusual in motor vehicle collision cases, the evidence as to material facts was conflicting. Primarily, defendants contend that, as a matter of law, Mr. McClure was guilty of contributory negligence which was a proximate cause of his death, and that such negligence was imputable to Mrs. McClure in her individual action on the theory that the McClures were engaged in a joint and common enterprise. Other allegations of error will be mentioned and considered but we are of opinion that the verdicts and judgments below should not be disturbed.

The collision occurred in the intersection of Dorchester Avenue and U. S. Highway No. 52-A, also known as Meeting Street Road, about seven miles north of the City of Charleston, South Carolina. Defendant Kelly was driving the tractor-trailer northerly on Meeting Street Road. The tractor-trailer combination had an over-all length of 42 feet and, with its load of 25,000 pounds of bananas, had a total weight of approximately 45,000 pounds. Mr. and Mrs. McClure, with their daughter Carole and her then fiance (later her husband), David Boatman, were proceeding in a westerly direction on Dorchester Avenue toward the Meeting Street Road intersection. Mr. McClure was driving his 1956 Oldsmobile and Mrs. McClure was riding beside him. Carole was riding in the rear seat behind her father and David was beside her to her right.

U. S. Highway No. 52-A is a main thoroughfare between Charleston and Columbia, South Carolina, and, at its intersection with Dorchester Avenue, is divided into two lanes, one for northbound and one for southbound traffic. Approximately over the center of the intersection a traffic signal device was suspended. It is undisputed that, at the time of the accident and for a time prior thereto, the lights facing the traffic on Dorchester Avenue were not operating and a traveler proceeding west on Dorchester Avenue would receive no traffic light signal. However, the lights controlling traffic on Meeting Street Road were in operation. The evidence disclosed a dwelling located at the southeast corner of the intersection of the two roadways and that a traveler going north on Meeting Street Road and approaching this intersection would not have a clear view of Dorchester Avenue to his right because of this dwelling house and the growth of trees and shrubbery in the yard. Additionally, Meeting Street Road curves for some distance before its intersection with Dorchester Avenue and a northbound driver, negotiating a curve to his right, cannot see westbound traffic on Dorchester Avenue until that traffic is virtually within the intersection. The intersection is likewise "blind" for westbound traffic on Dorchester Avenue before reaching the intersection.

On the morning of the accident, Kelly, the driver of the tractor-trailer, had left Columbia, South Carolina, about five o'clock bound for Charleston, some 100 miles away, to pick up a load of bananas. He arrived in Charleston between 7:30 and 8:00 o'clock, loaded his truck and started the return trip to Columbia, proceeding north on Meeting Street Road. At about 10:30 A.M. he rounded the curve on Meeting Street Road and approached the intersection which has been described. It appears that this district was zoned for 35 miles per hour traffic. Kelly had made this trip many times and was familiar with the intersection and the speed limits there.

The McClures were in the Charleston vicinity after a twelve-year absence except for one short visit and were staying at a motel. There was testimony to the effect that the area had undergone a great change during their absence. As David Boatman testified, the fact that the traffic signal was not operating was not alarming since in Knoxville, Tennessee, where the four passengers resided, some of the traffic lights are not in operation after schools close for the summer months.

There was testimony to show that Mr. McClure applied his brakes prior to reaching the intersection and brought his vehicle almost to a stop; that from this position cars approaching on Dorchester Avenue from the opposite direction to the west of the intersection could be seen traveling in an easterly direction, moving into the intersection and turning right although other vehicles at that point in the through lane or the northerly lane were not moving. Mr. McClure proceeded slowly into the intersection and again applied his brakes in an apparent effort to avoid collision with the tractor-trailer which, according to the testimony of certain witnesses, had entered the intersection after the McClure car was partly across and which, in the words of one witness, "came roaring out of no place." The vehicles collided at a point in the intersection almost directly under the suspended traffic control device. Photographs of the Oldsmobile, taken after the accident, show the terrific impact of the collision. Evidently the front end of the McClure car collided with the tractor at a point almost directly back of the tractor driver's cab. Other damage to the left rear portion of the McClure car was apparent. The force of the collision hurtled and spun the Oldsmobile into and through a brick wall or coping, causing it to land in the lot at the northeast corner of the intersection some distance from the point of impact. There was evidence to indicate that the McClure car had been spun around due to the truck's momentum and that the left rear of the car struck against the rear part of the tractor-trailer after the first contact. Mr. McClure was thrown clear of the car and was killed instantly. Mrs. McClure was thrown out of the automobile so that, after the vehicle came to rest, only her feet were still inside and up on the front seat. The McClure car was completely demolished and sold for junk.

An investigating officer testified that when he arrived on the scene the truck was parked and the rear of the trailer was from 120 to 125 feet beyond and north of the intersection. Other witnesses, including Kelly, fixed the rear of the trailer at a point nearer the intersection.

Mrs. McClure sustained personal injuries. According to the medical evidence, in addition to various and sundry painful lacerations, bruises and sprains, her left cheek bone was fractured causing hemorrhages into the tissues and requiring many stitches. She was unconscious and after a stay in a hospital was removed in a station wagon to her home in Tennessee. After a period of approximately three weeks she returned to former employment at the direction of her physican who thought this might relieve her mental anxiety. She testified that she could not do her work properly. There was testimony to the effect that she suffered from dizziness, loss of memory, spells of nervousness and headaches; that she has never fully recovered from her injuries; that she sustained an ugly pigmented scar on her left cheek which, at the time of trial, was puffed out and was admitted to be a permanent defect.

As stated, there were conflicts in the testimony. Certain witnesses told of the roar of the truck as it came into the intersection, estimating its speed as 45 to 50 miles an hour. Kelly, the driver, and other witnesses testified that the truck was proceeding at a much slower rate. The surviving occupants of the Oldsmobile testified that the McClure car, prior to reaching the intersection, had been traveling at a speed of 10 to 15 miles an hour and came almost to a complete stop before entering the intersection. Mrs. Beckham, a stranger to the McClures and apparently a disinterested witness, was driving her own car on Dorchester Avenue about one and one-half or two car lengths behind the McClure car. She estimated her speed along Dorchester Avenue at about 25 miles an hour. She had learned earlier in the day that the traffic lights on Dorchester Avenue were not operating. Concerning the McClure car, its approach to the intersection and the accident, she testified on cross-examination as shown below.¹

David Boatman who, as stated, was a passenger in the rear seat of the McClure car, testified that the truck loomed up in front of them and just as Mr. McClure "hit" the brakes he hit the truck; that the truck was going through so fast Mr. McClure ...