Montgomery v. National Convoy & Trucking Co.

• Decision Date: 02 February 1938
• Docket Number: 14612.
• Citation: 195 S.E. 247,186 S.C. 167
• Parties: MONTGOMERY v. NATIONAL CONVOY & TRUCKING CO. et al.
• Court: South Carolina Supreme Court

195 S.E. 247

186 S.C. 167

MONTGOMERY v. NATIONAL CONVOY & TRUCKING CO. et al.

No. 14612.

Supreme Court of South Carolina

February 2, 1938

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

Action by Bessie G. Montgomery against the National Convoy & Trucking Company and another for injuries sustained in an automobile collision. From a judgment for the plaintiff, the defendants appeal.

Affirmed.

Osborne Butler & Moore, of Spartanburg, and Love & Thornton, of Greenville, for appellants.

Perrin & Tinsley, of Spartanburg, and Horace L. Bomar, Jr., of New York City, for respondent.

BAKER Justice.

Action in tort by respondent against appellants, the complaint alleging that respondent's damage and injuries were the direct and proximate result of the joint and several acts of negligence and carelessness of the appellants in the operation of their trucks on the main highway between Spartanburg, S. C., and Charlotte, N.C. There are thirteen specifications of negligence, etc., contained in the complaint, but for a decision of this case it is unnecessary to set out herein the specifications, other than (j), (k), and (m), which follow:

"(j) In that both of the defendants herein were jointly and severally negligent, careless, wilful, wanton and reckless in failing to send their drivers ahead to warn the approaching cars of the danger which impended and in failing to place flares along said highway as a warning to an approaching automobile that said highway was entirely blocked.

(k) In that the defendants were jointly and severally wilful and wanton in failing to give any warning whatsoever to approaching automobiles that the entire highway was blocked by their respective trucks, even though a considerable period of time elapsed between the time when each of their respective trucks had stopped and before the time that this plaintiff's automobile ran into the truck of the defendant Frank G. North, Inc."

"(m) In that each of the defendants jointly and severally failed to keep a proper lookout for approaching automobiles on the highway so as to warn them of the hidden danger immediately in front of them."

The answers of appellants pleaded, first, in effect, a general denial; second, the act of God; and, third, contributory negligence.

At the close of respondent's testimony, the appellants moved for a nonsuit on the grounds that the evidence showed no actionable negligence on their part; that the collision, as a result of which respondent was injured, was unavoidable; that the condition of the weather and of the road over which the parties to the action were traveling was an unprecedented and unusual condition, resulting in making the highways extremely and exceedingly slick to the point where the conditions constituted an act of God; that the respondent, and her agent and chauffeur were, as a matter of law, contributorily negligent, in that the evidence showed that the respondent's automobile could have been stopped after the chauffeur saw the trucks on the highway, but for the ice on the highway, of which icy condition respondent's chauffeur was fully aware, and he should have taken same into consideration and been prepared to stop, having regard for the icy condition of the pavement; that respondent's automobile could have been stopped after her chauffeur saw the trucks parked in the road, without regard to lights and flares, but for the icy condition of the pavement.

In addition to the above grounds, the appellant National Convoy & Trucking Company moved for a nonsuit upon the ground that, even if the evidence showed that this appellant was negligent, one or more independent causes intervened between such negligence and the injury as the proximate, efficient, or real cause of such injury.

We have not set out all the grounds on which the motion for a nonsuit was based, but sufficient for a decision of this case.

The motion was refused, the trial judge holding that although the road was blocked accidentally or unintentionally, one so blocking the highway must use the care required of a man of ordinary prudence and discretion, to warn oncoming vehicles in the nighttime; and that it was for the jury to say if the appellants, under the circumstances of their trucks having blocked the highway, were negligent in giving warning to oncoming vehicles of the blocked condition of the highway.

At the conclusion of all of the testimony, appellants moved for a directed verdict upon practically the same grounds as for a nonsuit, and this motion was also refused.

The case was, after the charge of the trial judge, submitted to the jury, and it found in favor of respondent against both appellants in the full amount demanded in the complaint, $3,000, as actual damage.

A motion for a new trial was argued and refused, and the appellants come to this court upon a total of thirty-five exceptions, several of these having a number of subdivisions. However, counsel for appellants have reduced the issues to seven:

"(1) Was it error to permit certain of plaintiff's witnesses to testify as to whether they could have seen lights if any had been present?

(2) Was it error not to hold as a matter of law that the collision in question was the result of an act of God, or was an unavoidable accident, and that there was no actionable negligence on the part of this appellant?

(3) Was it error not to hold as a matter of law that the plaintiff is barred of recovery because of her own contributory negligence and recklessness? (4) Was it error for the Court to charge the jury that the burden rested upon the defendants to prove that the act of God relied upon was the sole cause of the collision, and that the defendants were not negligent in connection therewith?

(5) Was it error for the Court to charge the jury that the burden of proof was upon the defendants to show by the greater weight of the evidence that it was not their negligence or wilfulness which was the proximate cause of the injuries complained of?

(6) Was it error for the Court to charge, at the request of the plaintiff, section 1628 of the Code, relating to reckless operation of a motor vehicle on the highways of the State?

(7) Was it error for the Court to refuse appellants' motion for a new trial on the ground that the verdict of the jury was contrary to and in direct violation of the charge delivered by the trial judge?"

In passing upon these issues, we will not take them up in order, nor, except where necessary, separately.

There was evidence which, stated as briefly as is needful for an understanding of the issues, tended to prove the following facts:

December 1, 1936, the day on which the collision occurred and respondent received her injuries, was a cold, disagreeable day, and on various sections of the main highway leading from Spartanburg, S.C., to Charlotte, N. C., rain and sleet fell causing the highways to become quite slick in places. Respondent, whose home was in Spartanburg, S. C., had gone to Charlotte that morning, accompanied by two women guests, and her car was operated by her chauffeur, a man named Ed Smith. Returning, they left Charlotte about 3:30 o'clock in the afternoon, and on account of the condition of the weather and the anticipated condition of the highway, respondent attempted to purchase chains for her automobile but was unable to secure any which would fit the tires. The tires were practically new, the tread thereon being excellent, and they proceeded to drive slowly in the direction of Spartanburg. At a point about three miles beyond Blacksburg, toward Grover, the latter town being located part in North Carolina, and part in South Carolina, as respondent's automobile came around a curve at the crest of a long hill, and when the car was sufficiently around the curve on the crest of the hill for the lights of the car to focus on the highway leading down the hill, respondent's chauffeur observed the trucks of appellants, which had completely blocked the highway, said trucks being about fifty-one feet from the point where he could see them. The chauffeur at the time was operating the car at not more than 20 miles per hour, due to the condition of the highway. He applied his brakes and put the car in reverse gear, but by reason of the ice on the highway and decline the car slid on into the trucks, or that is, into the truck of the appellant Frank G. North, Inc., which was stalled on the highway, a little to the north of where the truck of appellant National Convoy & Trucking Company was stalled, completely blocking the traffic line of the highway in a southerly direction. In this collision, respondent received her injuries. There is evidence that the lights of one of the trucks were burning, and fusees or flares burning at the location where the trucks were stalled, but that at the crest of the hill and curve in the highway there were no lights or other warning attempted to be given the public using the highway traveling in a southerly direction. The agents of appellants operating the trucks knew, or had every reason to know, that once a car had passed the crest of the hill and started down the decline, traveling towards Spartanburg, it would be impossible to stop such automobile or motor vehicle due to the icy condition of the highway, regardless of the rate of speed at which such automobile may be traveling. The trucks of appellant had entirely blocked the highway for fifteen minutes prior to the automobile of respondent reaching the point of the collision, and as aforesaid, there was evidence that appellants failed to warn travelers approaching from the North by the putting...