Shockley v. Cox Circus Co.

• Decision Date: 13 March 1944
• Docket Number: 15631.
• Parties: SHOCKLEY v. COX CIRCUS CO., Inc., et al.
• Court: South Carolina Supreme Court

29 S.E.2d 491

204 S.C. 353

SHOCKLEY v. COX CIRCUS CO., Inc., et al.

No. 15631.

Supreme Court of South Carolina

March 13, 1944

Mann & Arnold, of Greenville, for appellant.

Henry L. Strickland, of Charlotte, and Love & Thornton, of Greenville, for respondent.

STUKES Associate Justice.

Plaintiff a young married woman twenty-two years of age, whose husband was away in the service of the United States Navy, was employed in October 1942 as a waitress in appellant's lunch room on the outskirts of the City of Greenville. After midnight of October 30th, plaintiff accompanied appellant in his sedan automobile to take some colored employees to their homes across the city, after which appellant was taking plaintiff to her home which was just off the Asheville highway (our State No. 25), known locally as the New Buncombe road, and there were then no other occupants of the car.

Traveling a stretch of at least several hundred feet of fairly straight pavement, twenty or more feet wide and with four-foot asphalt shoulders on each side, the car was driven by appellant into and under the rear of a heavily loaded truck of the defaulting defendant, Cox Circus Co., Inc. Appellant was overtaking the truck and both vehicles were on their right of the center line. The cargo of the truck consisted of heavy plank and other timbers which protruded from the back, and it was giving the colored driver trouble, he thought from a slipping clutch, and it was difficult for it to travel under its load; it was moving along slowly or was possibly at a standstill at the time of the collision.

The testimony and physical evidence tended to show that appellant was driving at a high and dangerous speed, possibly sixty or more miles per hour, whereas the legal speed limit established by the highway department at this point was thirty-five miles per hour, so indicated by signs along the road. 1942 Code, Sec. 1616. It is fairly inferable from the evidence that appellant saw the truck only when he was practically upon it and tried unsuccessfully to turn left in order to avoid the collision. Unfortunately, he had in recent months lost the sight of one eye. He testified that he had no time to apply his brakes and there was no evidence of their use. He further said that he had just passed another automobile going in the same direction and was forced to turn sharply to the right in order to avoid collision with an oncoming car, but a reading of the record is convincing that the jury were fully justified in refusing to follow appellant's testimony. He produced no witness who was an occupant of the other vehicles which he mentioned and, on the contrary, there was testimony that no other automobile was about.

Appellant's car was driven under the rear end of the truck and load, as said above, reaching the rear axle of the truck and the vehicles were so strongly bound together that the automobile was extricated only by the power of another truck which came up from the rear, together with the aid of the truck involved in the collision pulling in the opposite direction. Plaintiff and appellant were badly hurt and unconscious. Several who came upon the scene, including some Greenville County officers, had considerable difficulty in removing them even after the wrecked vehicles were finally separated. The automobile was afire and it appears that only the courage and presence of mind of the driver of a large truck which overtook the wreck, and the prompt use of his fire extinguisher, saved the lives of the victims.

Plaintiff was very seriously injured, was unconscious for days and spent over six weeks in hospital. At the time of the trial almost a year after the accident the wound of a fractured ankle was still draining and she is, at best, permanently crippled by that mishap. In addition there were serious head injuries resulting in badly impaired eyesight and almost constant headaches and pains. There are also disfiguring scars and a recent photograph of her was introduced in evidence to show the impairment of personal appearance which resulted from her injuries.

The present appellant sued the Circus Company for his damages in the United States District Court but the action was settled by payment of the sum of $300, agreed upon by the parties when the jury were deliberating upon their verdict. Plaintiff testified for him but within a few days afterward instituted this suit. She was examined at the trial with respect to the conflicts between her testimony in the Federal Court and the allegations of her complaint in this action. However, her case is not dependent upon her testimony alone for there was ample other evidence to sustain the verdict of the jury. Able attorneys who conducted the trial defense for appellant did not move for a nonsuit or for a directed verdict in his favor.

The complaint was based upon the alleged concurrent negligence recklessness, wilfullness and wantonness of both defendants, and contained many specifications of alleged acts of negligence, etc., which it was contended concurred and combined to proximately cause plaintiff's injuries. There was no, or negligible, evidence to sustain a number of the specifications but there were no motions requesting the elimination of any of them from the consideration of the jury and, upon careful consideration of the record, we have no doubt that there was sufficient evidence to sustain the verdict of the jury with respect to some of them relating to both defendants, which is the test if it were necessary to apply it in this case.

Damages were sought in the amount of $15,000; the case was submitted to the jury upon the theory that plaintiff, respondent here, was a guest in the automobile of appellant and instructions pertinent to that relation were given; and the jury returned a verdict for $7,500. Before such they visited the locus upon their volition. Motion for a new trial was made on two grounds, first that there was no evidence upon which the jury could conclude that liability existed under our "guest statute," section 5908 of the 1942 Code, whereby recovery is allowed only if injury results to a guest passenger (plaintiff) from the intention of the (defendant) owner or operator of the vehicle or is caused by his heedlessness or reckless disregard of the rights of others (Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30); and second, that the evidence was susceptible only of the inference that the accident resulted from the negligence of the co-defendant, Cox Circus Co., Inc., who failed to answer the complaint. The able and long experienced trial judge refused the motion without comment of record.

The appeal is upon seven sub-divided exceptions which counsel have conveniently condensed into six questions, the order of which will be followed in the disposition of them. The first is: Did the trial judge commit error in permitting the witness Tate to testify as to the speed of the defendant's car?

The witness referred to testified that his home was on the New Buncombe road and about 85 feet from it, where he had been living about six years. His wife was employed in a nearby cotton mill and got off from work at midnight, he meeting her there and walking home with her, which took about fifteen minutes, and on this occasion they sat on the porch for a brief rest and the circus truck passed before them, he having seen it approaching as he crossed the road to his house. He said that the truck was evidently laboring and not running over ten miles an hour. Just after it passed witness and his wife entered the house to retire and went in their bedroom, just off the porch and nearest the highway and about 200 to 225 feet from the scene of the wreck; both windows were open; as they entered the room an automobile (designated by him in his testimony as "this automobile") "passed at a terrific rate of speed, I wouldn't say how fast, but enough for us both to notice, to take notice of it, and as it went by the roar just seemed to roar by, and as it roared by, the crash came."

He was asked in effect by respondent's counsel (this was all on direct examination) whether from his observation of traffic on this road over the years and his hearing of it, he had some idea of the speed of the car from its sound. He replied: "I could not put the speed below sixty miles an hour." After this answer was out trial counsel for appellant objected, complaining incidentally that he could not hear the witness because of the noise of traffic about the Court House. Examining counsel restated his question to be whether the witness was not qualified by experience to judge the speed of cars by the noise they make, and upon further objection the court ruled as follows: "I hardly think he could qualify himself as an expert. He can say he heard them and how fast he thinks this car was running." Appellant's counsel then stated his view that he did not think it competent for the witness to judge the speed of an automobile which he could not see at night, further saying, however, that the witness might say that it was either fast or slow. Thereupon the question was re-worded and the witness cautioned not to estimate the speed in miles but, from the noise he heard, to say whether the speed was reasonable, fast or unusually fast. Then the court inquired whether there was objection to the question and counsel said: "I think not, your Honor, let him go ahead and answer it." The answer was: "I would say that it was going at a terrific rate of speed." And there was no further objection by appellant's counsel.

This incident in the testimony has been rather fully stated in order to demonstrate that appellant has no just ground of complaint, for the first question, which resulted in the estimated mileage, was not objected to by counsel, nor was ...