Smoak v. Charleston County
| Decision Date | 08 April 1924 |
| Docket Number | 11456. |
| Citation | 122 S.E. 862,128 S.C. 379 |
| Parties | SMOAK v. CHARLESTON COUNTY. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Charleston County; H. F Rice, Judge.
Action by E. D. Smoak, as administrator, against Charleston County. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to enter a nonsuit.
Nathans & Sinkler and John I. Cosgrove, all of Charleston, for appellant.
James Allan, of Charleston, for respondent.
Action for damages on account of alleged wrongful death of the intestate, Prevost Smoak, who was killed in a collision, at night, between a motorcycle with a side car attachment, in which he was riding, and a Ford truck, loaded with wood which had broken down, and had been left by the owner upon the highway, unlighted and unguarded. Verdict for the plaintiff, $4,000, and defendant has appealed.
The facts are as follows:
On November 19, 1921, in the forenoon, a Ford truck, loaded with wood, belonging to one Murray, broke down on a certain highway of Charleston county, and was left standing there. The truck was headed south, and was on the right side of the road. The highway was 30 feet wide, 18 feet of which was hard-surfaced. Murray was not an employee of the county. The truck was left where it broke down during the remainder of the day, Saturday, all of Saturday night, Sunday, Sunday night, and until some time in the night of Monday, unlighted and unguarded.
Prevost Smoak, the deceased, was a telephone lineman engaged upon the line which was located along the highway, not far from the disabled truck; he knew of its situation. On Monday afternoon about sundown one Holden, who was a patrol officer of the county authorities, and furnished with a motorcycle equipped with a side car passed the point where Smoak was at work, and was asked by him for a ride. Smoak invited Holden to supper with the force at their camp near by. The invitation was accepted, and after supper Holden announced his purpose to resume his patrol, looking after speeders. Smoak asked to be allowed to accompany him, and took a seat in the side car. They proceeded in the direction of Charleston, traveling at the rate of 15 to 20 miles an hour. The motorcycle was equipped with a headlight, which owing to the unclean condition of the reflector, lighted a distance of only 10 or 15 feet ahead. They were engaged in conversation, Holden looking out for approaching cars; he testified: "I was not thinking about the truck, and when I got to myself we had run into the truck"; "that at the time of the accident he was looking at Smoak and Smoak was looking at him."
The defendant, at the proper times, made motions for nonsuit and a directed verdict, upon grounds which sufficiently appear below. They were refused.
The exceptions present the several propositions, which will be considered in order.
(1) That the motions for nonsuit and for a directed verdict should have been granted upon the ground that the evidence did not tend to show that the truck was not left in the highway by the deceased.
The "case" contains this statement:
"It appeared that on Saturday morning, the 19th of November, 1921, Mack Murray the owner of a Ford truck, loaded with wood, was driving on the cement road in St. Andrews parish to the city of Charleston, and, when about three miles from the city, the truck broke down, and he left it on the side of the road."
This disposes of the appellant's first proposition.
(2) That the motions for nonsuit and for a directed verdict should have been granted upon the ground that the evidence showed that the collision was due to the contributory negligence of the deceased.
It appears beyond dispute that Smoak, the deceased, was drinking; that he entered a conveyance in which he had no right to ride, for his own pleasure; that he knew that the motorcycle was equipped with a defective headlight; that at night, or even in the daytime, it was not at all a safe conveyance; that he knew of the stranded truck being in the highway and on the side he was traveling; that he was in conversation with Holden as they sped along; that he knew that the conversation necessarily diminished Holden's vigilance; and...
To continue reading
Request your trial