Myers v. Evans

• Citation: 81 S.E.2d 32,225 S.C. 80
• Decision Date: 15 March 1954
• Docket Number: No. 16845,16845
• Court: United States State Supreme Court of South Carolina
• Parties: MYERS v. EVANS et al.

Page 32

81 S.E.2d 32

225 S.C. 80

MYERS v. EVANS et al.

No. 16845.

Supreme Court of South Carolina.

March 15, 1954.

Waring & Brockinton, Charleston, for appellant.

Hagood, Rivers & Young and Barnwell & Whaley, Charleston, for respondents.

OXNER, Justice.

Appellant, plaintiff below, brought this action to recover damages for personal injuries alleged to have been sustained as a result of the negligent, reckless and wanton operation of a Studebaker truck owned by respondent T. M. Evans and driven by his employee, respondent James Givens. Appellant alleged that on the morning of March 2, 1950, while walking in an easterly direction across the southbound lane of Highway No. 52, at a point about six miles north of Charleston, she was suddenly and without warning struck by the above truck which was proceeding in a northerly direction on said southbound lane. Respondents denied all acts of negligence, recklessness and wantonness alleged in the complaint and further set up a plea of contributory negligence, recklessness and wilfulness in 'that the plaintiff, without taking any precaution whatsoever for her own safety, while not keeping a proper lookout for automobiles which were plainly visible, walked from the west to the east side of the dual highway when traffic was approaching so close as to make it hazardous to cross the highway, and walked into the side of the defendant's truck, thereby making inevitable the collision brought about by plaintiff's own negligent, reckless, wilful and wanton conduct.'

The trial resulted in a verdict for respondents, defendants below. Appellant made a motion for a new trial, which was denied, and this appeal followed. Although the exceptions relate solely to the charge, a brief review of the testimony is necessary for a proper understanding of the questions raised.

At the place where the accident occurred, Highway No. 52, a heavily traveled, paved highway, runs north and south and consists of two avenues, each of which is about 30 feet in width with three lanes for traffic. The one on the east is reserved for northbound traffic and that on the west for southbound traffic. Between these avenues is a grass area approximately 20 feet in width. The surrounding area is thickly populated, and there are a number of business establishments on each side of the highway. The speed limit in this vicinity is 35 miles per hour.

Appellant testified that shortly after nine o'clock on the morning of March 2, 1950, she undertook to cross from the west to the east side of Highway No. 52 and that when she had traversed about two-thirds of the southbound avenue and was approaching the central grass area, she was struck without any warning on her right hip and knocked to the pavement. She said that as she was proceeding across this roadway, she was looking to the left for southbound traffic and did not see the vehicle which struck her. Several of her witnesses, however, testified that she was struck by the left front of the respondent truck which was traveling northwardly on the southbound lane, and that after the accident, the truck ran up on the grass area and stopped.

The only eyewitness for respondents was the driver of the truck. He denied striking appellant. He said that he came out of a nearby driveway on the west side of the highway intending to turn to his right, but in order to keep cars from 'running over' him, drove across the southbound lane and stopped on the grass area. He further testified that after doing so, he saw appellant crossing the southbound lane, and that she was struck by an automobile proceeding in a southerly direction which never stopped. He said when the accident occurred, his truck was standing still in the grass area at a point about fifteen or twenty feet away.

Section 46-392 of the 1952 Code provides that whenever, as here, a highway has been divided into two roadways that 'every vehicle shall be driven only upon the right hand roadway'. There is abundant evidence to the effect that the respondent truck was being driven in the wrong direction. In fact, the driver admitted at one point in his testimony that for a short distance he was traveling north in the avenue reserved for southbound traffic. This constituted negligence 'in the absence of explanatory or excusatory circumstances.' Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, Volume 2, Section 1072.

With the foregoing factual background before us, we now turn to the exceptions to the charge. It is contended that the Court erred in charging: 'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.' The quoted language constitutes a portion of Section 46-435 of the 1952 Code. The jury was further instructed that any violation of this and certain other sections of the Code regulating traffic on the highways is negligence per se and 'there is a presumption of law that such violation is a proximate cause of the injury', which presumption 'is rebuttable, and the jury should consider all of the evidence in the case in determining the question of proximate cause.' At a later point in the charge, the foregoing portion of Section 46-435 of the Code was again read to the jury in charging request No. 4 of the respondents, but in doing so the Court there inserted the word 'lawfully' after the word 'vehicles', so as to read that such pedestrian 'shall yield the right of way to all vehicles lawfully upon the roadway.'

It is our view that Section 46-435 of the Code had no application under the facts of this case and that the portion thereof charged was calculated to mislead the jury and was highly prejudicial. The right of way mentioned extended only to vehicles going south on the roadway appellant was crossing when injured. Anyone traveling in the wrong direction on this roadway forfeited his statutory preferential status. Greenbaum v. Costa, 137 Md. 524, 113 A. 79; Widronak v. Lord, 269 Mass. 238, 168 N.E. 799; Thursby v. O'Rourke, 180 Md. 223, 23 A.2d 656; Blashfield, Cyclopedia of Automobile Law and Practice, Volume 2, Sections 1009, 1072, and Volume 2A, Section 1291.

It cannot be said that appellant was negligent as a matter of law in crossing the highway at a place where there was no crosswalk. Thursby v. O'Rourke, supra. Although it was incumbent upon her to yield the right of way to vehicles traveling in the proper direction, she was not required to anticipate the approach of a vehicle traveling in a northerly direction. And in the absence of any circumstances which would reasonably give notice to the contrary, she would not be negligent in assuming that there would be no vehicle coming from her right. Mathias v. Eichelberger, 182 Wash. 185, 45 P.2d 619; LeBlanc v Browne, 78 Cal.2d 63, 177 P.2d 347. This is in line with the general rule that everyone has a right to presume that every other person will obey the law, and in the absence of a reasonable ground to think otherwise, it is not negligence to assume that one is not exposed to danger arising only from violation of law or duty by another. Flowers v. South Carolina State Highway Dept., 206 S.C. 454, 34 S.E.2d 769; Lowie v. Dixie Stores, Inc., 172 S.E. 468, 174 S.E. 394.

It is argued that any error in the foregoing charge was cured by adding the word 'lawfully' after 'vehicles' when this statute was later read to the jury, and as so modified the charge could not have been prejudicial because it was the duty of appellant in any event to yield the right of way to vehicles traveling south on this roadway. But the negligence, if any, of appellant in this respect was wholly irrelevant to the issues being tried between these parties. Any negligence on...