Rowe v. Frick
| Citation | 159 S.E.2d 47,250 S.C. 499 |
| Decision Date | 26 January 1968 |
| Docket Number | No. 18753,18753 |
| Parties | Thomas Earl ROWE, a minor under the age of fourteen (14) years, by his Guardian ad Litem, Carl F. Rowe, Appellant, v. Lloyd A. FRICK, Respondent. |
| Court | United States State Supreme Court of South Carolina |
J. Wesley Drawdy, William F. Able, Columbia, for appellant.
J. Reese Daniel, Columbia, for respondent.
Thomas Earl Rowe, a minor nine years of age, by his guardian Ad litem, brought this action against Lloyd A. Frick, to recover damages for personal injuries sustained. The plaintiff alleges that the defendant was driving his Chevrolet automobile in a southerly direction on U.S. Highway No. 21 near the town of Ridgeway, in the County of Fairfield, on July 10, 1965, in a careless, negligent and reckless manner and while so operating said automobile did drive same into, against and upon the minor plaintiff. The answer of the defendant was a general denial and that the injuries to the plaintiff resulted from his contributory negligence.
The case came on for trial before The Honorable Robert W. Hayes, Presiding Judge, and a jury, in the Court of Common Pleas for Richland County, on March 23, 1967, and resulted in a verdict for the defendant. During the course of the trial the plaintiff made a motion to strike the defendant's defense of contributory negligence, and for a directed verdict in favor of the plaintiff. After the rendition of the verdict by the jury the plaintiff made a motion for judgment Non obstante veredicto and, in the alternative for a new trial. These motions were refused by the trial judge and this appeal followed.
U.S. Highway No. 21 is a two lane roadway, running in a generally north and south direction. The plaintiff resided with his parents on the eastern side of said highway and he had crossed the highway from his home to the family mailbox located on the western side of said highway and about four and one-half feet from the edge of the roadway. At the time of the injury to plaintiff, defendant was traveling in a southerly direction in a line of traffic in which there were automobiles in front of him and to the rear. There was also a line of traffic in the northbound lane.
There were two eye witnesses to the accident, other than the defendant, in which the plaintiff was injured. One of the witnesses was driving an automobile in the southbound lane of the highway immediately to the rear of the defendant. The other was driving an automobile in the northbound lane of traffic. These two witnesses testified that the speed of the defendant was about 45 miles per hour, which was the approximate speed of all of the vehicles traveling on the highway in the vicinity of the accident. They further testified that the plaintiff was standing at a mailbox on the western side of the highway and as the defendant's automobile was passing the mailbox, he ran into the side of the car. According to their testimony they did not hear the defendant blow his horn nor did he turn or swerve in either direction, driving straight ahead. The witnesses testified that they saw no indication that the defendant applied his brakes.
The defendant testified that when he was approximately 50 to 60 feet from the mailbox he saw the plaintiff with his back towards the highway facing the mailbox and approximately 3 feet from the highway. He testified that as he approached the mailbox the plaintiff without any indication of moving or crossing the highway suddenly turned and 'made a dart' towards the highway, running into the right side of his automobile at the door. The defendant stated that his speed was approximately 40 to 45 miles per hour and admitted that he did not slow down, blow his horn or apply his brakes prior to the accident. We quote the following from the testimony of the defendant:
This accident was investigated by a highway patrolman. We testified that the mailbox in question was approximately four and one-half feet from the edge of the road. At the edge of the road he found drops of blood almost directly in front of the mailbox and some south of the mailbox. This officer testified that he examined the automobile of the defendant and found the right front door bent and bits of flesh and blood stains on the side of the door and on the right front corner post. He testified that there was no damage to the front of the vehicle.
The first question for determination is whether the court erred in refusing to strike the defense of contributory negligence where the plaintiff was nine years of age upon the ground that the defendant had failed to affirmatively show the capacity of the plaintiff to be guilty of contributory negligence. It is a well settled rule in this state that between the ages of seven and fourteen years a child is presumed incapable of exercising judgment and discretion requisite to charge it with contributory negligence, but that such presumption is Prima facie only, and can be rebutted by evidence of capacity. Hollman v. Atlantic C.L.R. Co., 201 S.C. 308, 22 S.E.2d 892.
We think there was no error on the part of the trial judge in submitting to the jury the question whether the plaintiff possessed such intelligence, foresight and judgment that he could be charged with contributory negligence. We quote the testimony of the parents of the plaintiff which was given while being cross-examined by the attorney for the defendant. The mother testified as follows:
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