Smith v. Carolina Milling Co.
| Decision Date | 27 January 1933 |
| Docket Number | 13565. |
| Citation | 167 S.E. 553,168 S.C. 355 |
| Parties | SMITH v. CAROLINA MILLING CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Dillon County; Thos. S Sease, Judge.
Action by E. P. Smith against the Carolina Milling Company. From judgment for defendant, plaintiff appeals.
Reversed and remanded for new trial.
Lide & McCandlish, of Marion, for appellant.
Gibson & Muller, of Dillon, for respondent.
This action grew out of a collision between a Buick automobile the property of the plaintiff, and which was being driven by him, and a truck, the property of defendant, which was then being driven by Will Wall, an employee of defendant. The collision occurred in the town of Dillon the night of August 3, 1928. The case was heard by Judge T. S. Sease and a jury and resulted in a verdict for defendant.
The issues made by the appeal are set out in seven exceptions, but not so many questions are necessary to be decided.
All of the exceptions, save one, impute errors to the presiding judge in his charge of the law. One exception imputes error in allowing the introduction of the ordinance of the town of Dillon, which regulated the speed of automobiles in the town. If there was error here, it was harmless.
We may say, however, that we do not think it was error to admit the ordinance; the fact that the notices had not been posted as the statute required did not destroy the effect of the ordinance as some evidence whether the parties to the collision were observing due care in the circumstances.
The serious questions of the appeal relate to the charge of his honor, the presiding judge, and the questions of negligence per se growing out of alleged violation of the statute of the state which regulates the use of brakes and lights on automobiles which are being used on highways of the state. There is a further issue relating to the alleged responsibility of the defendant under the doctrine of respondeat superior, as for its own alleged negligence, in that its truck was being used upon the highways without efficient brakes and without proper lights.
The judge was requested by plaintiff to charge the jury in these words: "The Statutory law of this State is that every four wheel motor vehicle while in use on a public highway shall be provided with good and efficient brakes; and if you find from the evidence that the truck belonging to the defendant was being driven on the public highway without such brakes, then I charge you that this was negligence per se; and if such negligence was a direct and proximate cause of the injury and without which it would not have occurred your verdict must be for plaintiff."
A request similar in character, but which related to the lights which the statute requires shall be displayed on motor vehicles, was proffered by plaintiff. His honor charged each request, with this modification: "If such negligence was the sole direct and proximate cause of the injury and without which it would not have occurred, your verdict must be for the plaintiff."
The error is patent. The jury was instructed in one breath that before they could find for plaintiff it must be shown that the truck was being driven on the public highway without efficient brakes, and shown further that that was the sole direct and proximate cause of the injury; in the next breath the jury was instructed that before they could find for plaintiff it must be shown that the truck was being driven on the public highway at night without the lights which the statute requires, and that that disregard of the statute was the sole direct and proximate cause of the injury, and without which it would not have occurred.
It is impossible that both of these breaches of the statute which constitute negligence per se, operating at the same time in the same case, could be the sole direct and proximate cause of the injury, without which it could not have occurred. If either of them was a direct and proximate cause of the collision, and without which it could not occur, and there was no contributory negligence of plaintiff, then plaintiff was entitled to recover.
The complaint alleged as acts of negligence excessive speed, inefficient brakes, defective lights, failure to keep a proper lookout.
If plaintiff proved any of these acts of negligence, and proved it to be a direct and proximate cause of the injury without which it would not have occurred, he was entitled to recover, unless his own contributory negligence barred him.
"That the violation of a statute, although declared negligence per se, must be shown to have been the proximate cause of the injury, or at least a contributing proximate cause, is abundantly shown by the authorities and sustained by common sense and justice." Cirsosky v. Smathers, 128 S.C. 363, 364, 122 S.E. 864, 866.
In that case is found this reference, cited with approval:
This rule states the law in full defense of the rights of the defendant.
To state the rule that each act of alleged violation of a statute is negligence per se, but plaintiff cannot recover unless he shows that each of said acts is the sole direct and proximate cause of the injury, is to impose on the plaintiff an unreasonable obligation of proof, and to relieve the defendant of a plain legal liability.
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