Robinson v. Duke Power Co.

• Decision Date: 22 July 1948
• Docket Number: 16110.
• Parties: ROBINSON v. DUKE POWER CO. et al.
• Court: South Carolina Supreme Court

48 S.E.2d 808

213 S.C. 185

ROBINSON v. DUKE POWER CO. et al.

No. 16110.

Supreme Court of South Carolina

July 22, 1948

Sam R. Watt and Daniel & Russell, both of Spartanburg, for appellant.

J C. Mooneyham and Johnson, Johnson & Foster, all of Spartanburg, for respondent.

STUKES, Justice.

Respondent is an old employee of the Southern Railway and works at their shops a few miles from Spartanburg on the Asheville highway. In accord with his custom of many years he boarded a passenger bus of Duke Power Company at the shops at a little after four o'clock on the afternoon of July 25, 1946, to return to his home in the city. He sat on the back seat in conformity with the requirement that colored persons occupy the rear seats. The bus proceeded towards Spartanburg and after a little distance pulled toward the right of the road and slowed to pick up a prospective passenger who stood on the right edge of the paved shoulder of the road. Before coming to a complete stop it was struck at the left rear by a large loaded truck, whereby respondent received a serious head wound and was taken to a hospital. He was dismissed after treatment but remained under the care of his physician for some time and he testified to apparently permanent impairment of his vision. He missed over a month from work and thereby lost in excess of $200 in wages.

The action for damages is against the Power Company, which was the owner and operator of the bus, and against the owner of the truck and the truck itself. All defended upon general denials and verdict was rendered against all in the amount of $600 actual and punitive damages. Only the Power Company appealed.

The complaint alleged negligence, wilfulness and wantonness on the part of all of the defendants, with separate specifications against the Power Company, as follows: (a) Failure of proper signal of the intended stop; (b) failure to have the rear signal lights of the bus clean so that their signal could be seen by the driver of a vehicle approaching from the rear; (c) in stopping the bus on the road in violation of law; and (d) failure to have the rear window of the bus clean so that the driver could observe approaching vehicles.

The trial was remarkable in that neither the driver of the bus nor the driver of the truck testified. This raises the inference as to appellant that the testimony of its bus driver, if submitted, would have been unfavorable to it. The record contains no hint of explanation of his absence. Danner v. S. C. Railroad Co., 4 Rich. 329, 55 Am.Dec. 678; Murray v S. C. Railroad Co., 10 Rich. 227, 70 Am.Dec. 219; Ex parte Hernlen, 156 S.C. 181, 153 S.E. 133, 69 A.L.R. 443; Wingate v. Postal Telegraph & Cable Co., 204 S.C. 520, 30 S.E.2d 307; Gaskins v. Firemans Ins. Co., 206 S.C. 213, 33 S.E.2d 498. 20 Am.Jur. 192, Evidence, Sec. 187.

State Highway Patrolman Dorman was called to the scene of the accident, examined the vehicles and made certain measurements, to all of which he testified in behalf of respondent. He arrived at about five o'clock and found the vehicles in the position in which they were left after the collision; they were about twenty or twenty-five feet apart. The left rear of the bus and the right front of the truck bore unmistakable marks of the collision. The left rear glass window of the bus was broken. The right rear dual wheels of the bus were three and a half feet from the right edge of the shoulder, which means that they were about three and a half feet off the main or center paved portion of the highway. This paved portion was twenty feet wide and the hard surfaced shoulder at this point was six and one-half feet wide. The rear bus wheels had left skid-marks two feet, four inches long and the truck and trailer wheels had made similar marks on the pavement twenty and one-half feet in length, and those on the left-hand side were eight feet from the edge of the paved shoulder which placed the rear of that vehicle about one and a half feet within the right edge of the main paved portion. These measurements show that the bus was not quite as far to the right of the pavement as it might have been, although some of the witnesses testified that it was.

Besides the appellant's pictures of the scene and the vehicles, made just after the accident and when the patrolman was present, the latter's testimony is the only direct evidence in the record which supports respondent's allegations of negligence, etc. He testified that the exterior rear vision mirror of the bus was broken and that the rear glasses, quoting, 'were somewhat dirty and the stop lights covered with a slight amount of dust,' and continuing, 'I had the brakes applied in order to make the stop lights work and I measured off one hundred feet back and they were barely visible' from that point. On cross-examination this witness was even more damaging to appellant. In categorical answers to counsel's questions he testified that he boarded the bus and sat in the driver's seat and tried unsuccessfully to see through the rear glasses of the bus; that the latter were so obscured by mud or dirt that he could not see the truck sitting still close behind the bus, as it then was; and he repeated that at a distance of one hundred feet behind the bus he could not see the stop lights on its rear because they were covered with dust and dirt, as were the rear glasses (windows) of the bus.

Appellant contends first (including the second question presented) that there was error in the refusal of its successive motions for non-suit and directed verdict for lack of evidence of any actionable negligence of appellant which proximately caused or contributed to plaintiff's injury. The argument overlooks the testimony, which has been recounted, of the serious defects in the condition of the bus. Granting the apparent reckless conduct of the driver of the truck, it was reasonable for the jury to conclude that had the driver of the bus been cognizant of the dangerous approach of the truck at his rear, he would have driven the bus to the extreme right of the road or continued ahead at a sufficient speed to keep out of the way of the truck until it passed. His means of this knowledge consisted of the exterior rear vision mirror (which was broken according to the evidence) and his view of the approaching truck in the interior mirror, and the latter was impossible because of the unkempt condition of the rear glasses or windows of the bus. Moreover, the efficiency of his stop or brake lights at the rear was greatly impaired because of their dirty condition, according to the testimony of the patrolman. This brief discussion of the pertinent testimony is convincing that these questions were properly submitted to the jury for their determination.

Appellant is a common carrier and respondent was a fare-paying passenger which brings into play the well-settled rule of law that appellant in such case should be held to be highest degree of care for the safety of passengers consistent with practical operation. The following is quoted from the opinion in the recent case of Humphries v. Stokes Bus Service, 199 S.C. 132, 18 S.E.2d 675, 676: 'It is now established that the owner of a bus is considered a common carrier of passengers, and as such owes a duty to the passengers to exercise the highest degree of care for their safety that is consistent with the practical operation and conduct of its business so long as the relationship of passenger and carrier exists; and a failure to do so is negligence. Poliakoff v. Shelton, 193 S.C. 398, 8 S.E.2d 494; Eaddy v. Greensboro-Fayetteville Bus Lines, 191 S.C. 538, 5 S.E.2d 281; Payne v. Atlantic Greyhound Bus Lines, 182 S.C. 58, 188 S.E. 426; Annotation, 96 A.L.R. 727; 37 Am.Jur.Sec. 144, page 594.' Subsequent cases of like tenor are: Thomas v. Atlantic Greyhound Corp., 204 S.C. 247, 29 S.E.2d 196; Squires v. Henderson, 208 S.C. 58, 36 S.E.2d 738, and Lentz v. Carolina, Scenic Coach Lines, 208 S.C. 278, 38 S.E.2d 11.

Also helpful from the Thomas case, 204 S.C., at page 252, 29 S.E.2d at page 198, is the following: 'Where a motion is made for a directed verdict, the testimony and all reasonable inferences deducible therefrom are to be considered in a light most favorable to the party against whom the motion is made. It is not the province of the Court to weigh the testimony, but simply to determine if there is any relevant, competent testimony adduced from which a reasonable inference may be drawn, tending to establish the material elements in the plaintiff's cause of action.'

Reliance is largely had by appellant upon Locklear v. Southeastern Stages, Inc., 193 S.C. 309, 8 S.E.2d 321. It is a valuable authority for its clear reasoning and its wealth of citations of former decisions. But this case does not come within the rule of it. There a bus had stopped, partly off the paved highway, to take on passengers. The latter were struck while in the act of boarding the bus by a recklessly driven automobile which undertook to unlawfully pass with undiminished speed on the right of the stationary bus. It was held, as a matter of law, that this outrageous act of negligence need not have been foreseen by the driver of the bus whose manner of parking, if negligent, was not the proximate cause of the accident. The facts of the present case are quite different. The jury may have reasonably decided that the bus driver in this case should have ascertained before slowing to a stop, even on his far right of the highway, that there was no approaching vehicle in dangerous proximity behind, and for that purpose his rear vision mirrors and back glasses were needed in good order. It is common knowledge that it is not unforeseeable that a slow-moving vehicle in present-day highway traffic is subject to the danger of being...