Porter v. Cook, 15225.

• Decision Date: 06 March 1941
• Docket Number: No. 15225.,15225.
• Citation: 13 S.E.2d 486
• Court: South Carolina Supreme Court
• Parties: PORTER. v. COOK et al.

13 S.E.2d 486

PORTER.

v.COOK et al.

No. 15225.

Supreme Court of South Carolina.

March 6, 1941.

Appeal from Common Pleas, Circuit Court of Anderson County; G. B. Greene, Judge.

Action by A. C. Porter, administrator of the estate of James Calvin Porter, deceased, against J. J. Cook and another, to recover damages for wrongful death. From a judgment of nonsuit entered at the close of plaintiff's evidence, plaintiff appeals.

Affirmed.

Leon W. Harris, of Anderson, for appellant.

Henry P. Willimon, of Greenville, and Harold Major, of Anderson, for respondents.

FISHBURNE, Justice.

Plaintiff's decedent, James Calvin Porter, a boy of about eleven years of age, fell from his bicycle beneath a passenger bus owned and driven by the defendant, J. J. Cook, and was instantly killed. The action was brought against Cook to recover damages for wrongful death, and against Pennsylvania Casualty Company of Lancaster, Pennsylvania, with whom he carried liability insurance. To the various specifications of negligence charged against him in the complaint, Cook filed a general denial and a plea of contributory negligence From a judgment of nonsuit en tered at the close of the plaintiff's evidence, the plaintiff appeals, assigning error. The nonsuit was based upon the sole ground that the evidence failed to show any actionable negligence on the part of the defendant, Cook, in the operation of the bus.

The major question presented by the appeal is the. contention of the plaintiff that Cook was guilty of negligence as the proximate cause of the death of James Calvin Porter, in that the testimony showed that he could have stopped the bus after seeing the perilous position of the boy, but that he made no attempt to do so until after the boy had been run over and killed. It is also said that the evidence permits the inference that if Cook had slackened his speed the boy would have escaped injury.

The plaintiff's case depends upon the evidence of two eye witnesses, Charles Harris and E. B. Drew. It appears from their testimony that the large passenger bus, driven by the defendant, Cook, was at the time of the accident, proceeding along the sixty-foot paved state highway running through Orr Mill Village, at a moderate rate of speed, estimated to be fifteen or twenty miles per hour. As Cook approached a side street which entered the highway from his right, he sounded his horn three or four times. Just as he reached the intersection, the deceased suddenly emerged from the side street on his bicycle, riding at a speed estimated to be ten or fifteen miles per hour. The witness, Harris, stated that as the boy entered the highway "the bus started to pulling over to the side (its left), and he come into the side of the bus and pushed kinda off once, and he was going across the street when he first come out, and then he kinda turned and come towards town and pushed kinda off of the bus a time or two." This witness and the other witness, Drew, testified that when the deceased turned his bicycle to his right, he and the bus were then moving alongside each other, and that there was ample room between the bus and the sidewalk for the bicycle to have safely passed on if it had been under control.

The boy first made contact with the bus with his left hand near the forward door, to the rear of the front fender, on the side away from the driver. It appears that he continued thrusting himself away from the bus with his left hand until ...