Reese v. National Sur. Corp., 16827

• Citation: 80 S.E.2d 47,224 S.C. 489
• Decision Date: 28 January 1954
• Docket Number: No. 16827,16827
• Parties: REESE v. NATIONAL SURETY CORP.
• Court: United States State Supreme Court of South Carolina

Page 47

80 S.E.2d 47

224 S.C. 489

REESE v. NATIONAL SURETY CORP.

No. 16827.

Supreme Court of South Carolina.

Jan. 28, 1954.

Edens & Woodward, Columbia, for appellant.

C. T. Graydon, J. Bratton Davis, Columbia, for respondent.

OXNER, Justice.

This action was brought against the National Surety Company under an Act approved June 2, 1952, 48 St. at L. 3, for the recovery of damages alleged to have been sustained as a result of the negligent, reckless and wilful operation of a school bus. The statute mentioned requires insurance on all state-owned school buses indemnifying, among others, any person who suffers personal injury or property damage by reason of the negligent operation of a school bus. Only actual damages may be recovered.

The National Surety Company, except as to certain formal allegations of the complaint, entered a general denial and also set up a plea of contributory negligence, recklessness and wilfulness. At the conclusion of the plaintiff's testimony, the defendant moved for a nonsuit upon the ground that the undisputed evidence showed that plaintiff was guilty of contributory negligence in driving on the left side of the road when within 100 feet of an intersection, in violation of Section 46-388 of the 1952 Code. This motion was denied. There was no motion for a directed verdict at the conclusion of the testimony. The jury found for the plaintiff in the sum of $500. The defendant then made a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was refused. From the judgment entered on the verdict of the jury, the defendant has appealed.

A brief reference to the testimony is necessary for a proper understanding of the questions raised by the exceptions. According to the plaintiff, on the morning of September 15, 1952, while traveling in Richland County at a speed of 35 or 40 miles an hour along Highway No. 262, he overtook and attempted to pass a school bus on a straight stretch of road and as he did so, the driver of said bus, without any warning or signal, suddenly made a left turn for the purpose of entering a dirt or unimproved county road, causing the right front of his automobile to collide with the left rear wheel of the bus.

The driver of the school bus, a twelfth grade student, testified that as he approached this intersection, traveling about 22 miles an hour, he saw in his rear view mirror the automobile of the plaintiff behind him; that by his mechanical direction signal he gave due notice that he was about to make a left turn, but notwithstanding this warning, plaintiff undertook to pass him on the left and collided with the left rear wheel of the bus as it entered the side road.

Before discussing the exceptions, it might not be amiss to state that we find no basis for plaintiff's contention that the joinder of the unimproved road with State Highway No. 262 did not constitute an intersection within the meaning of Section 46-257 of the 1952 Code. This dirt road was a public one maintained by Richland County. Moreover, plaintiff knew of this entrance to Highway No. 262 because he passed it almost every day going to and from work. The undisputed evidence shows a violation of Section 46-388 which provides that 'no vehicle shall at any time be driven to the left side of the roadway * * * when approaching within one hundred feet of or traversing any intersection'. While the defendant made a motion for a nonsuit on the ground that this section had been violated, there is no appeal from the refusal of this motion. Nor, as previously stated, was there any motion for a directed verdict. If the question of nonsuit or directed verdict were properly before us, a serious question would be presented.

All of the exceptions other than the last one relate to the charge. The first complaint is that the Court erred in refusing the following request by defendant:

'I charge you that if you should find that the plaintiff drove his automobile to the left of the center of the road while he was approaching within 100 feet of an intersection, that this would be a violation of statute; and, if you should further find that such violation contributed as a proximate cause to the collision, then your verdict should be for the defendant.'

It must be conceded that the foregoing request embodied a sound statement of law, but we think it was fully covered in the general charge. The jury was instructed that any violation of the provisions of the uniform act regulating traffic on the highways would constitute negligence per se. Among other sections of this statute read to the jury was 46-257 defining an intersection and the jury was further twice instructed 'that the statute law of South Carolina provides that no vehicle shall at any time be driven to the left side of the roadway when approaching within 100 feet of or traversing any intersection or railroad grade crossing.' The Court further charged that the plaintiff 'must not only prove that the operator of the school bus was negligent but he must also convince you that he was not negligent himself, and nothing that he did contributed to the injury, because if he fails to do that, he would not be able to recover.'

We do not agree with counsel for defendant that the foregoing request was tantamount to a motion for a directed verdict or peremptory instruction that plaintiff was guilty of contributory negligence as a matter of law.

It is further claimed that the Court erred in refusing a request to charge by defendant to the effect that if the jury found both drivers guilty of negligence, it did 'not matter which was the more negligent of the two, for if the...