Reid v. Swindler
| Decision Date | 29 May 1967 |
| Docket Number | No. 18657,E--9762,18657 |
| Citation | 249 S.C. 483,154 S.E.2d 910 |
| Court | South Carolina Supreme Court |
| Parties | James S. REID, as Administrator of the Estate of Elizabeth Louise Reid, Respondent, v. M. B. SWINDLER, Margaret B. Swindler, Timothy M. Swindler, and one 1962 Fordautomobile, bearing 1963 South Carolina License number, of whom all butM. B. Swindler are, Appellants. |
Melton Kligman, Frank L. Taylor, Kermit S. King, Columbia, for appellants.
McLeod & Singletary, Columbia, for respondent.
Elizabeth Louise Reid, a six year old girl, came to her death as a result of being struck by an automobile driven by Timothy M. Swindler, an appellant herein, in the City of Columbia, on November 13, 1962. Thereafter, the respondent was duly appointed as administrator of her estate and brought this action, pursuant to Section 10--1951 et seq. of the 1962 Code, for the benefit of the parents, for the alleged wrongful death of his intestate.
The complaint alleged that the respondent's intestate came to her death as a proximate result of the negligent, reckless and willful conduct of Timothy M. Swindler, a minor over the ago of fourteen years, while he was operating an automobile which was owned by his parents, Margaret B. Swindler, an appellant herein, and M. B. Swindler. The complaint further alleged that said automobile was provided and maintained for the general use and pleasure of the Swindler family and at the time of the accident it was being operated by Timothy M. Swindler, a member of the family, 'with the consent, knowledge, acquiescence, approval and under the direction of * * * Margaret B. Swindler and M. B. Swindler and in their interests and behalf * * * in the business for which the car was purchased, to wit, for the general use of the family', who by reason thereof was the agent of M. B. Swindler and Margaret B. Swindler. The answer denied any negligent, reckless or willful conduct on the part of Timothy M. Swindler and denied that there was any liability to the respondent under the family purpose doctrine. With regard to the family purpose doctrine it was alleged that the automobile in question was owned by Timothy M. Swindler but the title certificate and registration card showed his mother, Margaret B. Swindler, as the owner because the automobile was financed for him by her.
The cae came on for trial before the Honorable C. Bruce Littlejohn, Presiding Judge, and a jury, at the 1964 November term of the Court of Common Pleas for Richland County, and resulted in a verdict against Margaret B. Swindler, Timothy M. Swindler and the automobile in the amount of $25,000.00 actual damages. Prior to the submission of the case to the jury, a verdict was directed in favor of M. B. Swindler. A motion for a directed verdict in favor of the other appellants was appropriately made and was refused by the trial judge. After the verdict, the appellants made timely motions for judgment Non obstante veredicto and, in the alternative, for a new trial, and for a new trial Nisi. These motions were denied by the trial judge and this appeal is from his order denying such.
In considering the exceptions charging error on the part of the trial judge in refusing to direct a verdict and to grant judgment Non obstante veredicto, we must consider the evidence and all inferences reasonably deducible therefrom most strongly against the moving party and most favorably to the non-moving party. Since there has been a verdict by a jury in this case, we must adopt the view of the evidence most favorable to the verdict and give it the strongest probative force of which it will admit. Grier v. Cornelius, 247 S.C. 521, 148 S.E.2d 338.
It appears from the record that Timothy M. Swindler was driving a 1962 Ford automobile in a northerly direction in the 5200 block of Main Street, a residential area, in the City of Columbia, at approximately 1:45 P.M. on November 13, 1962, when the respondent's intestate, while crossing from the eastern side to the western side of said street, was struck by the said automobile. At the time the respondent's intestate was walking home from Arden Elementary School in which she was enrolled in the first grade. This school was located approximately one hundred and fifty to two hundred feet north of the point where the accident occurred. At the time of the accident there were no flashing lights showing a school zone but there was a school zone sign indicating a twenty mile per hour speed limit and such was located approximately the same distance as the school from the point of collision. The posted speed limit at the place where the respondent's intestate was crossing the street was thirty-five miles per hour. Timothy M. Swindler admitted that he was familiar with the 5200 block of Main Street and with the location of Arden Elementary School and knew that school children were accustomed to be walking in the area at the time, since he traveled that way while going to and from Eau Claire High School where he was enrolled as a student.
This accident was investigated by C. J. Ballington, and officer with the Police Department of the City of Columbia, and he testified that the car driven by young Swindler laid down skid marks of an average distance of seventy-seven feet. He said Swindler told him that he was going within the speed limit. This witness further testified that he performed an experiment or test at the scene of the accident within thirty minutes thereafter. Using the Swindler car, with a witness in the car to observe the speed, without a change in weather conditions or the pavement, in approximately the identical place and course followed by Swindler, he applied brakes at a speed of thirty-five miles per hour and in bringing the car to a complete stop put down skid marks having an average distance of forty-three and one-half feet, which was thirty-two and one-half feet less than the average distance of Swindler's skid marks. Over the objection of the appellants, the testimony as to this experiment made out of court was admitted in evidence. One Jones, a witness in behalf of the respondent, testified that he was an experienced automobile driver and he observed the Swindler car from the window of his home just before the brakes thereon were applied. He estimated the speed of the Swindler car as being between forty-five and fifty-five miles per hour. This estimate was admitted over objection of the appellants made on the ground that this witness did not see the car a sufficient length of time within which to judge its speed.
The record shows that the witness Ballington was cross-examined by the appellants concerning his out of court experiment and the witness Jones was cross-examined concerning his lack of opportunity to observe the Swindler car for a sufficient length of time to serve as a basis for his opinion as to its speed. The appellants cross-examined these two witnesses without reserving the objection previously made. This being true, the right to challenge the ruling of the trial judge admitting the testimony of these witnesses was thereby waived. Richardson v. Register, 227 S.C. 81, 87 S.E.2d 40, and Grain Dealers Mut. Ins. Co. v. Julian, 247 S.C. 89, 145 S.E.2d 685. The exception of the appellants charging error on the part of the trial judge in admitting the testimony of the witnesses Ballington and Jones is overruled.
The mother of the child, though she did not undertake to estimate the speed of the Swindler car, testified that he 'was going too fast * * * was going faster than cars normally go' and that she was frightened at the speed at which he was driving.
All parties to this action admit that the accident occurred in a residential area and the maximum speed limit at such place was thirty-five miles per hour, as is fixed by Section 46--362 of the Code. This section provides that any speed in excess of such limit shall be Prima facie evidence that the speed is not reasonable or prudent and that it is unlawful. There was evidence from which the jury could find that young Swindler was exceeding the Prima facie speed limit. In view of the admission of Timothy Swindler that he was familiar with the 5200 block of Main Street and knew that school children were accustomed to be walking in the area at the time, he was under duty to anticipate the likelihood of their running into and across the street, in obedience to childish impulses, and such imposed upon him the duty to exercise due care under the circumstances for their safety. Since the law recognizes that children act upon childish impulses there is imposed upon the motorist, in order to reach the standard of ordinary care with respect to them, the duty to exercise more vigilance and caution than might be sufficient in the case of an adult. Herring v. Boyd, 245 S.C. 284, 140 S.E.2d 246.
The appellants further assert that the trial judge erred in refusing the motions of the appellants for a directed verdict or for judgment Non obstante veredicto on the ground that the death of respondent's intestate resulted from the sole negligence of another or from an unavoidable accident or that young Swindler was faced with a sudden emergency, not of his own making, in which he acted as a person of ordinary prudence would have acted under the circumstances. The trial judge property refused to grant these motions because there was evidence from which the jury could conclude that young Swindler was guilty of negligence which proximately caused the death of respondent's intestate. This being true, the trial judge could not, as a matter of law, hold that the death resulted from the sole negligence of another or was the result of an unavoidable accident, or that young Swindler was faced with a sudden emergency, not of his own making, in which he acted as a person of ordinary prudence would have acted under the circumstances.
The next question for determination is whether the trial judge erred in permitting, over objection, the...
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