Odom v. Weathersbee, 16863

Decision Date04 May 1954
Docket NumberNo. 16863,16863
CourtSouth Carolina Supreme Court
PartiesODOM v. WEATHERSBEE et al.

Henderson, Salley & Cushman, Aiken, for appellants.

John F. Williams, Williams & Busbee, Aiken, for Chester Odom.

Thurmond, Lybrand & Simons, Aiken, for Pope Cook.

GRENEKER, Acting Associate Justice.

The respondent, plaintiff below, brought this action against B. E. Weathersbee, d/b/a Weathersbee's Valley Taxi, Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company and Pope Cook to recover damages for personal injury resulting from a collision between a truck owned and operated by Pope Cook and a taxi owned and operated by the defendant B. E. Weathersbee, in which the plaintiff was riding as a fare-paying passenger on the fifteenth day of February, 1949. The Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company was made a party-defendant by reason of the fact that it had issued its liability policy to the defendant Weathersbee, which policy had been filed as required by law, in order for the defendant Weathersbee to engage in the taxi business.

The matter came on for trial before the Honorable James M. Brailsford, Jr. and a jury at Aiken on November 12, 1952 and resulted in a verdict in favor of the plaintiff against the defendant B. E. Weathersbee and the defendant insurance company in the sum of four thousand eight hundred ninety dollars. The defendant Pope Cook was exonerated by the verdict of the jury.

A motion was made for a directed verdict in favor of the appellants. This motion, as well as motions for a new trial and for a directed verdict non obstante veredicto, were all overruled by the presiding judge. Appellants now come to this Court upon three exceptions, by which exceptions the following questions are presented for determination:

'1. Should the motions of the appellants made both at the close of the taking of the testimony and again after the verdict was rendered as a motion non obstante veredicto, on the ground that the evidence is susceptible of no other conclusion than that the driver of the taxi was not guilty of actionable negligence, have been granted?

'2. Should the motion for a new trial have been granted?'

In reviewing the record, looking for a proper determination of the questions raised by the appellants, it must be kept in mind that on motions for a directed verdict the evidence must be viewed in the light most favorable to the plaintiff and that the plaintiff, who was a paid passenger, was entitled to the highest degree of care by his carrier. These principles have been so often announced by this Court that citation of authority is hardly necessary.

The collision of the taxi, owned by defendant Weathersbee, in which the plaintiff was a passenger, and the truck owned and operated by the defendant Pope Cook, occurred on Richland Avenue in the City of Aiken. This avenue is also a portion of Highway Number One, which passes through the city. The evidence indicates that both the taxi and the truck, which was preceding the taxi, were going east on Richland Avenue, which is a four-lane paved highway, in the center of which is a parkway, so that there are two lanes for eastbound traffic and two lanes for westbound traffic separated by the parkway.

The defendant Pope Cook, the truck driver, contended that he, at all times prior to the accident, was in or partly in the lefthand lane going east, while the taxi driver contended that the truck was in the righthand lane until it was suddenly pulled to the left directly across the path of the taxi. The taxi driver contended that he was at all times in the lefthand lane going east.

Cook, the truck driver, testified that he was driving 'either twenty or twenty-five.' Lewis, the taxi driver, testified that the truck was going approximately fifteen miles an hour and that the taxi was going about the same speed and that the taxi attempted to pass the truck. The transcript discloses the following excerpts from the testimony by the plaintiff:

Direct Examination.

'Q. When you got there before the stop sign what did the taxi do, slow down? A. It stepped up to go around the truck.

'Q. Did he give any warning of any kind? A. I didn't see any.

'Q. Did you hear any? A. I didn't hear any.

'Q. The truck was turning in, to park? A. It turned in to park.

'Q. The taxi run into the truck when he turned to park? A. Yes sir.'

Cross Examination.

'Q. Just before the truck turned, it slowed down, dodn't it? A. Well, I could not tell you about that. Both were running plenty fast.

'Q. Didn't the truck slow down and that was when the taxi went around it? A. The taxi didn't get around it. They went together.

'Q. It started around it, didn't it? A. Yes, sir.'

Cross Examination.

'Q. What happened was the truck slowed down instead of the taxi speeding up, that's why the taxi went by? A. The taxi didn't get by.

'Q. The reason the taxi started to overcome or pass the truck was because the truck slowed down? A. Both were making good speed.

'Q. Hadn't the truck started to slow down? A. The truck turned in and they went together. Both were running, both were making too much speed for a place like that. They ought to be fixing to stop.'

The testimony above set forth is favorable to the plaintiff, since in passing upon motions for directed verdict the evidence must be viewed in the light most favorable to the plaintiff.

The defendant Pope Cook, in his verified answer, put the blame of the collision on the taxi driver, and we quote the following from his answer:

'That before fully entering said parking place, a taxi operated by defendant B. E. Weathersbee, traveling east on Richland Avenue (U. S. Highway No. 1), at a high, dangerous and reckless rate of speed, considering the time, place and circumstances, without any warning of its approach or attempt to pass the same, ran upon and into collision with the left side of said truck, damaging it about the body and frame * * *. That said collision was brought about solely and as a proximate cause, and without which the same would not have occurred, by the negligence, carelessness, willfullness and recklessness of said driver of said taxi. * * *'

The answer then proceeded to set out how or in what particulars the taxi was negligent.

When Cook, the owner and driver of the truck, took the stand, on direct examination he testified somewhat at variance with the verified allegations of his answer, but upon cross examination by plaintiff's counsel he testified that the allegations contained in his answer were true and that the collision occurred in the manner set out in his answer. Whether the defendant Cook was giving a correct version of the facts surrounding the collision at the time he was directly examined, or upon his cross examination, or in his sworn answer, which he admitted upon cross examination was true, was a question of fact for the jury and not for this Court.

Appellants contend that the verdict is 'illogical' and cite Limehouse v. Southern Railway, 216 S.C. 424, 58 S.E.2d 685 as authority for setting aside an illogical verdict. We do not think that the facts in the Limehouse case are at all comparable to the case before us. In the Limehouse case there was an action for actual and punitive damages to two children, and the testimony showed that both of the children received physical injuries. The verdict was only for punitive damages and nothing was awarded for actual damages. The matter was sent back to the lower court for a new trial, in line with the decision rendered in Cook v. Atlantic Coast Line R. Co., 183 S.C. 279, 190 S.E. 923, 924, which held:

'Where the actual damages sought are for traumatic injury, or injury to property, then in order to sustain a verdict for punitive damages, there must be actual...

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  • Gastineau v. Murphy
    • United States
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    • May 7, 1996
    ...unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings. Odom v. Weathersbee, 225 S.C. 253, 81 S.E.2d 788 (1954). Townes, 266 S.C. at 85, 221 S.E.2d at 775. On appeal from an order granting a directed verdict, the appellate court views......
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