Mickle v. Blackmon

• Decision Date: 10 February 1969
• Docket Number: No. 18869,18869
• Citation: 252 S.C. 202,166 S.E.2d 173
• Court: South Carolina Supreme Court
• Parties: , 42 A.L.R.3d 525 Janet MICKLE, by her Guardian ad litem, W. E. Mickle, Plaintiff-Respondent-Appellant, v. Larry Wayne BLACKMON, Respondent, and Cherokee, Incorporated, Appellant, and Ford Motor Company, Incorporated, Respondent-Appellant.

Page 173

166 S.E.2d 173

252 S.C. 202, 42 A.L.R.3d 525

Janet MICKLE, by her Guardian ad litem, W. E. Mickle Plaintiff-Respondent-Appellant, v. Larry Wayne BLACKMON, Respondent and Cherokee, Incorporated, Appellant and Ford Motor Company, Incorporated, Respondent-Appellant.

No. 18869.

Supreme Court of South Carolina.

Feb. 10, 1969.

John M. Spratt, York, Taylor B. Rion, Jr., Robinson, McFadden & Moore, Columbia, for appellant.

Vernon E. Sumwalt, Rock Hill, and William B. Webb, Charlotte, N.C., for respondent-appellant.

James P. Mozingo, III, D. Kenneth Baker, Darlington, Hayes, Hayes & Brunson, Rock Hill, Greer & Chandler, Darlington, for plaintiff-respondent-appellant.

BRAILSFORD, Justice.

On May 29, 1962, in the City of Rock Hill, seventeen-year-old Janet Mickle was a passenger in a 1949 Ford automobile, driven by Kenneth Hill. At the intersection of Jones Avenue and Black Street, this vehicle was in collision with an automobile driven by Larry Blackmon.

Janet was impaled on the gearshift lever, which entered her body behind the left armpit, penetrated to her spine, damaged the spinal cord at about breast level and caused complete and permanent paralysis of her body below the point of injury. She sued (1) Larry Blackmon, alleging negligence in the operation of his automobile, (2) Cherokee, Inc., a construction company which was engaged in widening Black Street, alleging negligence with respect to the removal of stop signs at the intersection and the failure to take proper precautions thereafter, and (3) Ford Motor Company, alleging negligence in the design and composition of the gearshift lever and of the knob or ball affixed thereto.

The trial resulted in an apportioned verdict for plaintiff against Cherokee, Inc., for $468,000.00 actual damages and against Ford Motor Company for $312,000.00 actual damages. The jury found no damages against Blackmon, and he is not a party to the appeal.

Cherokee moved unsuccessfully for judgment notwithstanding the verdict, for a new trial and for a new trial on after-discovered evidence and has appealed from the denial of these motions.

The circuit judge granted the motion of Ford Motor Company for judgment not-withstanding the verdict, and plaintiff has appealed. The court found no merit in Ford's alternative motion for a new trial, and Ford has filed a contingent and alternative appeal by which it seeks to preserve for review the grounds of this motion.

I

We first consider the sufficiency of the evidence, viewed in the light most favorable to the plaintiff, to establish actionable negligence on the part of Cherokee.

For some months prior to the day of the Collision, Cherokee had been engaged, under a contract with the South Carolina Highway Department, in widening Black Street from 30 feet to 44 feet. On that day work had been in progress in the block south of the Jones Avenue intersection and in the intersection itself.

Jones Avenue was the through highway and was protected by stop signs facing traffic in Black Street. Preparatory to grading new raduses at the intersection, a Cherokee employee removed these stop signs, at about 11:00 A.M. on May 29, 1962, according to his testimony and that of other witnesses for Cherokee, several days before, according to a witness for plaintiff.

At about 2:30 P.M. Kenneth Hill and Janet Mickle were traveling north on Jones Avenue toward the intersection. He was familiar with the route and knew that Jones Avenue was the through highway. At the same time, Larry Blackmon approached on Black Street from the west. He had entered Black Street from Green Street after stopping at a stop sign facing Green Street traffic. Traffic at the next intersection was controlled by a signal light. There were stop signs facing all entrances at the next intersection, Spruce Street, referred to in the record as a four-way stop, and Blackmon stopped before entering. The next intersection, Stonewall, was only one block west of Jones Avenue. Here there were no stop signs facing Black Street, which, inferentially, was the through street.

As Blackmon approached Jones Avenue, he observed that there was no stop sign facing him. He testified that he was unfamiliar with the intersection and did not know that Jones Avenue was the favored highway. The usual construction signs were in place along Black Street and the fact that the roadway was under construction was otherwise evident. The stop signs were lying on the ground where they had been placed by Cherokee's employee. Inferentially, the grading had been completed at this intersection, and the motor grader had been moved to another location.

The two automobiles entered the intersection at approximately the same time ¹ with the Hill vehicle on the right. The view was somewhat obstructed and neither driver saw the other until the collision was inevitable. Blackmon testified: 'I got into the intersection and glanced up, and there was the Hill car. * * * I throwed on my brakes as fast as possible and swerved.' Hill testified: 'As I got into the intersection I happened to glance to my left and seen the Blackmon car headed my way. * * * (I)n a split second the Blackmon car hit me on the left.' ²

It is reasonably inferable from the testimony that the stop signs could have been replaced before the collision, as they were a short time afterward and before any additional work had been accomplished, or temporary signs could have been set up, or other means could have been employed to warn travelers on Black Street of their duty to stop before entering the intersection. But Cherokee took no measures to furnish such warning, nor did Cherokee attempt to warn travelers on the through highway that the stop signs were not in place.

It is also inferable that the absence of stop signs at this intersection created a deceptive situation in which the danger of a collision was greatly increased. It was for the jury to determine whether Cherokee was negligent in failing to take any precautions to warn motorists using the two streets of this hazard.

While it is argued in the brief that Cherokee was not guilty of negligence, the motion for a directed verdict at the trial did not challenge the sufficiency of the evidence in this respect. Instead, the motion rested upon an asserted lask of causal connectdion between the absence of the signs and plaintiff's injuries. This is also the point most strongly urged in the brief.

Section 46--421, Code of 1962, applies at intersections where neither stop signs nor other traffic control devices have been erected. A motorist approaching such an intersection is required to yield the right-of-way to a vehicle which has entered the intersection from a different highway; and, where two vehicles enter the intersection at approximately the same time, the driver of the vehicle on the left is required to yield to the vehicle on the right. Cherokee argues that the removal of the stop signs had no casual connection with the collision because, absent the signs, Blackmon was, nevertheless, required by the terms of this statute to yield the right-of-way. It is contended that Blackmon's negligence in failing to comply with this statutory duty ³ and in failing to exercise such care as to speed and lookout at an 'uncontrolled intersection,' as common prudence required, was, as a matter of law, the sole proximate cause of the collision. We disagree.

The jury could reasonably conclude that the absence of the stop signs was calculated to mislead a traveler on Black Street as to his duty at the intersection. We need not ignore the reality that jurors and judges, in common with other motorists, from almost universal usage, have learned to rely upon the presence of traffic control signs or signals at all save, perhaps, the least traveled intersections. Stop and go signal lights are constructed and located so as to be conspicuous to motorists on both intersecting highways. On the other hand, stop signs are designed and located so as to command the attention only of motorists on unfavored streets as they approach intersections with through highways. No corresponding signs are placed on favored highways to declare their status; and a stop sign on an unfavored highway is not conspicuous to a motorist on the intersecting highway, nor is the absence of such a sign conspicuous to him. Absent a traffic signal, a motorist approaching an intersection expects that traffic on one street will be controlled by a stop sign. The absence of one of these familiar and distinctive signs facing him is readily apparent and naturally suggests that one is in place on the intersecting street.

We held in Eberhardt v. Forrester, 241 S.C. 399, 128 S.E.2d 687, that the temporary absence of a stop sign does not alter the status of a preferred highway, and that a motorist on such highway, Unless he has knowledge of the absence of the sign, is entitled to assume that a vehicle on the secondary highway will stop. On the other hand, a motorist on the secondary highway is not required to stop, except as otherwise required by the exercise of due care, if he does not have knowledge of the character of the through highway. Of course, a motorist, regardless of right-of-way is required to keep a reasonably vigilant lookout on approaching an intersection.

A part of the risk created by Cherokee was that a motorist on Black Street, unfamiliar with the Jones Avenue intersection and not being confronted by a stop sign, would, whether negligently or not, enter the intersection with his vigilance blunted by the false appearance that Black Street traffic had the right-of-way. At the same time there was the risk that a motorist on Jones Avenue would enter the intersection relying upon the effectiveness of the stop sign which normally protected traffic on the through street. The jury was fully justified in concluding that these risks were realized because of Cherokee's negligent failure to guard against them, and that there was...