Senn v. J. S. Weeks & Co., 19198

• Citation: 180 S.E.2d 336,255 S.C. 585
• Decision Date: 07 April 1971
• Docket Number: No. 19198,19198
• Court: United States State Supreme Court of South Carolina
• Parties: William Barto SENN, Respondent, v. J. S. WEEKS AND COMPANY, Appellant.

Page 336

180 S.E.2d 336

255 S.C. 585

William Barto SENN, Respondent, v. J. S. WEEKS AND COMPANY, Appellant.

No. 19198.

Supreme Court of South Carolina.

April 7, 1971.

Joseph R. Young, of Young, Clement & Rivers, Charleston, for appellant.

Thomas D. Wise, of Way, Burkett & Wise, Charleston, for respondent.

LEWIS, Justice:

This action arose out of an automobile collision and resulted in a judgment in plaintiff's favor in the amount of $5000.00 actual damages and $2500.00 punitive damages. Defendant has appealed, charging error in the refusal by the lower court of his timely motions for a directed verdict, judgment notwithstanding the verdict, and for a new trial.

Plaintiff was injured when his automobile was struck by a vehicle driven by one Jean Defee Powell, as plaintiff was proceeding through the intersection of President and Congress Streets, in the City of Charleston, South Carolina. President was a through street and traffic was required to stop before entering it from Congress in obedience to a posted stop sign. Plaintiff's automobile was struck when the Powell vehicle, travelling east on Congress, entered the intersection without stopping.

Powell was an uninsured motorist and plaintiff's liability insurance carrier paid to plaintiff the sum of $5000.00 under the uninsured motorist provisions of his policy, taking from plaintiff a Trust Agreement for the payment.

Thereafter this action was brought against the defendant. The asserted liability of defendant was based upon allegations that, at the time of the above collision, a pickup truck, owned by defendant, was illegally parked by its agent in a 'no parking' zone at the intersection, so as to obscure the stop sign from the view of motorists entering President from Congress Street, causing Powell to fail to see and obey the stop sign and to collide with plaintiff's automobile then in progress through the intersection.

The answer of the defendant, after denying the material allegations of the complaint, alleged (1) that any injuries suffered by plaintiff were due to the negligence and recklessness of Powell whose vehicle actually struck the plaintiff and (2) that plaintiff, in consideration of the payment received by him under the uninsured motorist provisions of his policy, had executed a release or covenant not to sue and defendant was entitled to have said amount deducted from any judgment rendered against it.

The first question to be decided is whether there was any evidence of actionable negligence or recklessness on the part of defendant. Defendant takes the position that the trial judge should have entered judgment in its favor 'upon the grounds that the only reasonable inferences to be drawn from the testimony were that the stop sign in question was not blocked from the view of Mrs. Powell and that any posible negligence on the part of the agent of the defendant was not the proximate cause of the injury to the plaintiff.'

A detailed review of the testimony of the various witnesses would serve no useful purpose. We find evidence from which the reasonable inferences may be drawn that defendant's pickup truck was illegally parked near the intersection of President and Congress Streets, at an angle, in a 'no parking' zone, and partially blocking traffic, so as to obscure the stop sign from the view of Mrs. Powell who was unfamiliar with the intersection; and that such deprived her of the benefit of the stop sign warning, thereby causing her to proceed into the intersection without stopping and collide with plaintiff's automobile. Under these facts and inferences, the trial judge properly held that the evidence presented a jury issue as to the actionable negligence and recklessness of defendant.

Defendant also charges that the trial judge committed error in refusing to admit certain pictures in evidence.

As heretofore stated, the basis of plaintiff's action was the allegation that defendant's truck was improperly parked in such a position as to obscure the stop sign from view. During the trial, defendant's counsel, after the witnesses had testified as to the respective heights and location of the truck and stop sign, made pictures of the stop sign with the truck parked in substantially the same position as that testified to by the witnesses. The pictures were made so as to show the view of the stop sign from the direction in which plaintiff was travelling. There was testimony that the truck and the stop sign were in the same condition as when the collision took place. When the pictures were offered in evidence by the defendant, the trial judge ruled them inadmissible. He was in error in doing so.

The pictures were offered to show the view that a motorist would have of the stop sign on approaching the intersection, with the claimed obstruction in substantially the same position as the witnesses located it at the time of the collision. The similarity to the accident conditions made the pictures competent and they were relevant to the one basic and vital issue in the case. The crucial nature of the evidence made its exclusion prejudicial. Its exclusion constituted an abuse of discretion and warrants the granting of a new trial on that ground.

Since it will be involved in a retrial of the case, one further question must be decided. This involves the effect of the settlement by plaintiff of his insurance carrier's liability under the uninsured motorist provisions of his insurance policy.

Plaintiff's damages were sustained when...