Sewell v. Hyder

• Citation: 229 S.C. 480,93 S.E.2d 637
• Decision Date: 09 July 1956
• Docket Number: No. D-2581,No. 17182,D-2581,17182
• Court: United States State Supreme Court of South Carolina
• Parties: Lawrence G. SEWELL, Jr., by and through his Guardian ad litem, L. G. Sewell, Respondent, v. Marion M. HYDER, Ezell Kimball, One 1949 Ford Sedan, South Carolina License, and Canal Insurance Company, a Corporation, Appellants.

Page 637

93 S.E.2d 637

229 S.C. 480

Lawrence G. SEWELL, Jr., by and through his Guardian ad litem, L. G. Sewell, Respondent, v. Marion M. HYDER, Ezell Kimball, One 1949 Ford Sedan, South Carolina License No. D-2581, and Canal Insurance Company, a Corporation, Appellants.

No. 17182.

Supreme Court of South Carolina.

July 9, 1956.

Rufus M. Ward, Spartanburg, for appellants.

E. C. Burnett, Jr., Spartanburg, for respondent.

MOSS, Justice.

Lawrence G. Sewell, Jr., instituted this action through his guardian ad litem, against Marion M. Hyder, an agent and servant of Ezell Kimball, the owner of the taxi driven by Marion M. Hyder, and Canal Insurance Company, the liability carrier upon the taxis owned by Ezell Kimball, to recover actual damages alleged to have been sustained to respondent's automobile, as a result of a collision between the 1949 Chevrolet coach owned by the respondent, and the 1949 Ford Sedan owned by Ezell Kimball and driven by Marion M. Hyder, which collision took place at the intersection of Pine and Norwood Streets, in the City of Spartanburg, South Carolina, at about 11:30 P.M. on December 24, 1954.

The complaint alleges that respondent's damage was directly and proximately caused by the negligence and carelessness of the appellants in the operation of a taxi, in the following particulars: In failing to yield the right of way to respondent when his automobile had commenced to pass the taxi; in failing to heed warning signal given by respondent; in failing to keep a proper lookout; in abruptly turning without warning or signal appellant's auto in the path of respondent's car; and in failing to apply such brakes as he may have had. The answer of the appellants sets up a general denial, and contributory negligence and wilfullness on the part of the respondent.

The case came on for trial before the Judge of the County Court of Spartenburg County and resulted in a verdict in favor of respondent. At appropriate stages of the trial, the appellants moved for a non suit, directed verdict and judgment non obstante veredicto. These motions were predicated upon the ground that the only reasonable inference to be drawn from the testimony was that the respondent was guilty of contributory negligence as a matter of law which bars his right of recovery against the appellants. The sole question for determination is whether or not the County Judge erred in refusing to so hold.

Pine Street runs north and south and is a part of United States Highway No. 176 and State Highway No. 9. Norwood Street intersects Pine Street at a right angle on the east side thereof. The vehicles involved in the collision at the intersection of Norwood and Pine Streets were both traveling south on said Pine Street. Glendalyn Avenue intersects Pine Street at right angles one block north of Norwood Street on the east side of Pine. The distance between Glendalyn Avenue and Norwood Street is estimated as being 400 feet, and the width of Pine Street is estimated to be 45 to 50 feet.

It also appears that the taxi of appellants was proceeding South on Pine Street in front of the automobile of the respondent. The respondent states that when he was about three hundred and fifty feet from the intersection of Norwood Street he blew his horn, blinked his lights and increased his speed to about 30 miles per hour, the taxi being driven at about 25 miles per hour, and pulled to the left side of the street and started to pass the automobile of the appellants, and continued to travel on the left hand side of the street until the time of the collision. At the intersection of Norwood Street and Pine Street, the taxi driver started pulling to his left to make a turn into Norwood Street. The respondent stated that he was familiar with the intersection of Norwood and Pine Streets, using said Pine Street in going to and from his place of residence. He further stated that he was less than 100 feet from the intersection when the appellant pulled to the left and that he knew that he was not supposed to pass at an intersection or within 100 feet thereof. He admitted that the collision took place at the edge of the intersection and while he was on the left side of Pine Street and in the act of passing the taxi. He further stated that the collision would not have taken place if he had not been trying to pass the taxi at the intersection.

The respondent alleges that he gave a signal of his intention to pass the taxi on the left. The appellant Hyder, the driver of the taxi, states that he gave a mechanical signal of his intention to make a left turn at the intersection of Norwood and Pine Streets. The respondent and the driver of the taxi both state that they did not know of the giving of the signal by the other.

The respondent related on direct examination the details of the collision and on cross examination by appellant's counsel, the record discloses that he gave the following testimony:

'Q. As I understand you, Mr. Sewell, there is no question about the fact that you are on the left side of the street when your automobile was less than 100 feet from that intersection, is there? You were on the left side of Pine Street, in the act of passing, when your automobile was less than 100 feet from the intersection? A. Yes, sir.

'Q. There is no question about that? A. No, sir.

'Q. An there is no question about the fact you were familiar with the street and knew Norwood Street was there? A. No, sir.

'Q. There is no question about the fact that the collision happened right at the edge of the intersection? A. No, sir.

'Q. And there is no question...