Smith v. Biggs

• Decision Date: 17 June 1955
• Docket Number: No. 6969.,6969.
• Citation: 223 F.2d 839
• Parties: Keitt SMITH, Appellant, v. Jettie I. BIGGS, Administratrix of the Estate of Lee Vester Biggs, Deceased, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

223 F.2d 839 (1955)

Keitt SMITH, Appellant, v. Jettie I. BIGGS, Administratrix of the Estate of Lee Vester Biggs, Deceased, Appellee.

No. 6969.

United States Court of Appeals Fourth Circuit.

Argued May 24, 1955.

Decided June 17, 1955.

L. W. Perrin, Jr., Spartanburg, S. C. (Edward P. Perrin and Perrin & Perrin, Spartanburg, S. C., on brief), for appellant.

William S. Sandifer, Spartanburg, S. C. (H. C. Bean and Carlisle, Brown & Carlisle, Spartanburg, S. C., on brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and HUTCHESON, District Judge.

DOBIE, Circuit Judge.

Jettie I. Biggs, as administratrix of the estate of Lee Vester Biggs, deceased, brought, in the United States District Court for the Western District of South Carolina, a civil action against Keitt Smith, seeking damages for the death of Lee Vester Biggs. The case was tried by the United States District Judge, without a jury. Timely motions by Smith, the defendant, for involuntary dismissal and for directed verdict were denied. The Trial Judge ordered judgment for Biggs in the sum of $25,000.00, actual damages. Defendant, Keitt Smith, has duly appealed to us.

The accident involved in this action occurred on U. S. Highway No. 29, now U. S. Highway No. 29-A, approximately a mile and a half West of the city limits of Spartanburg, South Carolina, on November 18, 1953, during the hours of darkness, at approximately 7:22 P. M. This highway is, and was at the time of the accident, a heavily travelled United States main highway; and traffic was especially heavy between 5:30 P. M. and 7:30 P. M. The accident was not at a crosswalk or intersection.

The highway consists of two roadways, the North roadway for Westbound traffic (Spartanburg to Greenville, South Carolina), the South roadway for Eastbound traffic (Greenville to Spartanburg). The two roadways are divided by a grass strip approximately the width of each roadway. Each roadway is marked for one-way traffic and is of white concrete.

At the time of the accident, Smith was driving from Spartanburg to Greenville on the roadway for Westbound traffic. Shortly after leaving the city limits of Spartanburg, and approximately seven-tenths of a mile from the scene of the accident, he passed an automobile proceeding in the same direction, by driving to the left side of the roadway. As he approached the point of impact with Lee Biggs, Smith was on the left side of the roadway. Traffic was approaching from the opposite direction in the roadway for Eastbound traffic. Smith had his lights on depressed beam. As he approached the point of impact, his vision was somewhat hampered by the headlights of traffic approaching on the South roadway. As the point of impact was reached, Smith was still on the left side of the roadway near the grass strip but he was commencing to turn his car toward the right side of the roadway, and at the point of impact he was looking ahead, paying particular attention to that portion of the road toward which he was turning.

There was a sudden blow on the left side of his car. He slowed down, turned around and drove back up the grass strip dividing the two roadways. He found Lee Biggs lying in the grass strip. This was the first time Smith had seen Lee Biggs. Smith, who is a physician, immediately examined Lee Biggs and found him to be dead. At the time of the accident, Lee Biggs was dressed in dark clothing and was wearing a dark hat.

The judgment below must be reversed, since we must find that Lee Biggs was guilty of contributory negligence as a matter of law. Since, as we have indicated, Smith did not see Lee Biggs at the time of impact and Lee Biggs is dead, there was no eyewitness testimony as to the conduct or movements of Lee Biggs just before the fatal accident. Certain facts, however do stand out crystal clear. On these facts, we base our decision.

For more than a quarter of a mile East of the point of impact, the road was straight and clear, with no obstructions to the view. The road is a heavily travelled main highway, and the accident did not occur at a cross-walk or intersection. Lee Biggs was wearing dark clothing and a dark hat, which rendered it more difficult for him to be seen by motorists. The lights of the Smith car were on, though dimmed. Shortly before the accident, Arthur Wood, a motorist in the South roadway, saw a man in dark clothes and wearing a dark hat, walking in the South roadway, with his hand in his pocket and his head down. Probably this was Lee Biggs.

Obviously, Lee Biggs, whether crossing the road or walking along the road, owed a duty to look. If he failed to look, he was clearly guilty of contributory negligence. If he looked, he could not have failed to see the lights of Smith's approaching car. In either case, Lee Biggs' administratrix is on the horns of a painful...