Morgan v. Greenville County

Decision Date03 February 1939
Docket Number14814.
Citation1 S.E.2d 144,189 S.C. 368
PartiesMORGAN v. GREENVILLE COUNTY. SMITH v. SAME.
CourtSouth Carolina Supreme Court

Wilton H. Earle, of Greenville, for appellant.

J Robert Martin, of Greenville, for respondents.

BAKER Justice.

These two cases arose out of an automobile collision, respondents being injured when the car, the property of the respondent Alvin Smith, and occupied by him and the respondent, Miss Frances Morgan, collided with an automobile being driven in the opposite direction on the Greenville County Highway leading from Tigerville to Traveler's Rest, and known as the Tigerville road. The car with which the Smith car collided was occupied by a Mr. Chandler and others, and will hereafter be referred to as the Chandler car, if such reference be necessary.

Under the facts of this case, we find that it will be unnecessary to pass upon the issue if the respective respondents were engaged in a common or joint enterprise. (However, we will state that undoubtedly they were so engaged, if the opinion of the writer hereof as to what constitutes a common or joint enterprise as set forth in Lusk v. State Highway Department, 181 S.C. 101, 107, 186 S.E. 786, were the accepted law of this State.) Therefore, in our discussion we will treat the appeals as though there is but one respondent and one case.

The complaint alleges that the injury to respondent (personal and property) resulted from and was caused by the negligent maintenance and upkeep of the highway herein above stated the failure to make proper inspection and locate the defect in same, and the failure to put up any guards or other warning of the defect. There is also an allegation that the respondent was without negligence.

The answer of appellant was a general denial, and the special plea, "act of God."

At the conclusion of respondent's testimony, appellant made a motion for a nonsuit, and at the conclusion of all the testimony, a motion for a directed verdict. Following the rendition of a verdict in favor of respondent, a motion was made for a new trial. These motions involved only two questions: (1) Whether or not there was sufficient evidence of negligence on the part of appellant; and (2) whether or not the respondent was guilty of contributory negligence as a matter of law. Of course, in a suit against a County, the complainant must show that he is free from negligence which is a proximate contributing cause of his injury.

At the point on the Tigerville road where the collision between respondent's car and the Chandler car occurred, the road was curved, and in the direction in which respondent was travelling, his right of the center of the road was the inside curve, and down grade. It was a tar-treated and hard-surfaced road, and immediately adjacent to the hard-surface, on the inside of the curve, the shoulder had become washed away, and the hard-surface broken off on the edge from ten to twelve inches and more, at some places, and the washout or trench immediately adjacent to the hard-surface was from six to sixteen and one-half inches in depth, and extending along the road for a distance variously estimated at from twenty to thirty or forty feet. Travelling on the inside of the curve the lights of an automobile would not shine thereon, but to the left, and therefore the condition of the highway was not observable after nightfall. On the evening of November 5, 1937, at about 8 o'clock, while travelling this highway, the right wheels of respondent's car went off the edge of the hard-surfaced portion of the road into this gully or washout, at which time the Chandler car was approaching around the curve, and when respondent undertook to and did get back upon the surface-treated highway, it caused his car to cross the center of the road and before he could get it back to his right side, the front of the Chandler car came into collision with the rear of respondent's car, resulting in personal and property damage. The paved or surface-treated portion of the road at one point adjacent to the washout was only sixteen and one-half feet wide, but the average width of the entire road was nineteen feet. The photographs of the road show that one operating a car at this point, especially if such one was intent upon avoiding a possible collision with an approaching automobile, could easily drive into or have his car deflected into this washout or gully, and that it was a serious defect in the road. There is testimony that this condition had existed partially as long as from March, 1937; and that shortly before the accident, the condition of the shoulder and road at this place had been called to the attention of one of the foremen engaged in the upkeep of roads of and under the care of appellant, but not from the standpoint of such defect being dangerous to the travelling public.

We have of course in our brief statement of the facts and conditions in reference to the highway, stated them from the testimony in behalf of respondent most favorable to him, but it should also be recorded that, although the road, shoulder and washout had been since the accident filled with dirt, the jury were allowed to view the "scene" before rendering their verdict.

It is the settled law of this State that on a motion for nonsuit or directed verdict all testimony must be viewed most favorable to a plaintiff, and if more than one reasonable inference can be drawn from the...

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1 books & journal articles
  • § 20-12 Negligence - "act of God" Defense
    • United States
    • South Carolina Requests to Charge - Civil (SCBar) Chapter 20 General Negligence
    • Invalid date
    ...226 S.C. 192, 84 S.E.2d 631 (1954)(act of God must be sole cause of injury in order to avail as defense); Morgan v. Greenville County, 189 S.C. 368, 1 S.E.2d 144 (1939)(act of God is a valid defense only when it is sole cause of plaintiff's injury); Montgomery v. National Convoy & Trucking ......

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