McVey v. Whittington
| Decision Date | 31 October 1966 |
| Docket Number | No. 18567,18567 |
| Citation | 151 S.E.2d 92,248 S.C. 447 |
| Court | South Carolina Supreme Court |
| Parties | , 27 A.L.R.3d 1 Sue Ellen McVEY, Respondent, v. Jesse B. WHITTINGTON, Appellant. |
Rogers, McDonald & Ross, Columbia, for appellant.
Frank L. Taylor, Kermit S. King, John W. Williams, Jr., Columbia, for respondent.
This appeal arises out of an action commenced by the respondent against the appellant to recover damages for alleged personal injuries sustained by her when she was struck by an automobile operated by the appellant while she, in the company of four other persons, was attempting to push a stalled vehicle off of Highway I--26, just north of the City of Columbia. It appears from the record that at approximately 10:45 P.M. on October 10, 1963, the respondent was a passenger in an automobile traveling on Highway I--26 towards Columbia. Also traveling in the automobile besides the respondent and the driver were two other couples. For some reason the motive power of the automobile in which the respondent was traveling failed. At that time the automobile was proceeding towards Columbia from Newberry and was traveling in the right-hand lane. Interstate Highway I--26 consists of four lanes, two lanes being for eastbound traffic and two lanes being for westbound traffic. The respondent, traveling towards Columbia, was in the eastern roadway which is paved with concrete at a width of twenty-four feet, providing two twelve foot lanes of traffic. To the right of the roadway is an asphalt strip which is twelve feet in width and is intended for parking in cases of emergency. The automobile in which the respondent was traveling at the time its motive power failed was in the right-hand lane of the concrete portion of the highway.
When the motive power of the automobile failed, the car still had momentum but instead of steering the car off of the concrete portion of the highway onto the asphalt strip provided for parking in cases of emergency, the driver allowed the car to stop on the concrete travel portion of the highway in the right-hand lane. After the car stopped, five of the six occupants, including the respondent, got out to push the car off the main travel portion of the highway and onto the twelve foot emergency strip. One young lady was left in the car to steer the car off of the highway as the others pushed it. While those persons were in the process of pushing the automobile, the appellant, driving his automobile in the same lane of the highway and in the same direction, drove into the rear of the stalled vehicle, striking the respondent and crushing her legs between the bumpers of the two cars. The other four persons who were pushing the stalled vehicle were able to remove themselves from behind the automobile to a place of safety. At the place of the accident the highway is straight and level for a distance of approximately one-half mile. The weather was clear.
The case was tried at the 1965 September term of the Court of Common Pleas for Richland County before The Honorable James A. Spruill, Jr., and a jury. The jury returned a verdict in favor of the respondent for actual damages. This appeal is from the trial judge's failure to grant appellant's motions for a directed verdict and for judgment Non obstante veredicto, or, in the alternative, for a new trial. The questions presented by the exceptions are whether there was any evidence of actionable negligence on the part of the appellant; whether the respondent was guilty of contributory negligence as a matter of law; and whether the trial judge incorrectly refused to allow testimony indicating that the driver of the automobile in which the respondent was riding had been drinking.
The question of whether or not there was error in refusing the motions of the appellant for a directed verdict, judgment Non obstante veredicto and, alternatively, for a new trial, upon the two grounds hereinbefore stated, requires us to consider the testimony and the reasonable inferences to be drawn therefrom in a light most favorable to the respondent. If more than one reasonable inference can be drawn, the case must be submitted to the jury. Ray v. Simon, 245 S.C. 346, 140 S.E.2d 575. With these principles in mind we will proceed to review the evidence contained in the record.
The respondent testified that when the car stopped all of the persons in it except one got out of the car to push it off of the highway to the right onto the asphalt strip. She testified that when they began to push the automobile James Rabon was at the left-hand side at the rear of the car; Charles Bishop was directly in the back on the left-hand side; she was next to Bishop; Ruth Farmer and John Shepherd were to her right. According to her testimony, when she got out of the car she looked to the rear and saw no vehicles approaching on the highway nor did she see any glow of lights over the crest of the hill approximately one-half mile away. Immediately the persons began pushing the automobile and after they had moved a few steps she heard James Rabon give a warning and tires squeal on the pavement. She testified that she attempted to move to her right but was unable to get out of the way of appellant's oncoming automobile. She said that Ruth Farmer and John Shepherd moved into the asphalt strip of the road. Bishop jumped on the trunk of the car. She could not recall where Rabon went. Rabon testified that when he first saw appellant's automobile approaching from the rear he immediately gave a warning and went around the left-hand side of the car towards the front, hugging the car as he went. He denied that he entered into the left lane for eastbound traffic and testified that no one else ran into the left lane.
The appellant testified that he was driving on Highway I--26 towards Columbia on his way to work. He said he met three cars which were across the median and traveling west towards Newberry and dimmed his lights when he met them. As he was about to brighten his lights after the cars going towards Newberry had passed, he saw five persons on the concrete strip in the right-hand lane in which he was driving. He further testified as follows:
'Mr. Williams: Mr. Whittington, when you first saw these folks standing in the road, did you have your car under control?
'The Witness: Yes, sir.
'
The appellant testified that when he first saw the stalled automobile and the persons pushing it he was approximately one hundred or one hundred and twenty-five feet away from them. There was testimony by a disinterested party, who appears to have been the first person to arrive at the scene of the accident, that he could see the outline of an automobile from a good half mile up the road. The respondent offered testimony that the lights on the stalled automobile were burning at all times while she and the others were making an effort to push it off the highway. The testimony was also to the effect that the automobile was equipped with five lights across its rear. The appellant testified that he did not see any lights burning on the stalled automobile until the time when the persons pushing it began to get out of his way. The automobile which the respondent was attempting to push had a white top and the respondent was wearing white slacks.
The trial judge held that there was...
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