Southern v. Cudahy Packing Co.

• Decision Date: 16 June 1931
• Docket Number: 13181.
• Citation: 159 S.E. 32,160 S.C. 496
• Parties: SOUTHERN v. CUDAHY PACKING CO.
• Court: South Carolina Supreme Court

159 S.E. 32

160 S.C. 496

SOUTHERN v. CUDAHY PACKING CO.

No. 13181.

Supreme Court of South Carolina

June 16, 1931

Appeal from Common Pleas Circuit Court of Greenville County; E. C Dennis, Judge.

Action by Pearl Southern by her guardian ad litem Annie Southern, against the Cudahy Packing Company. From the judgment, defendant appeals.

Affirmed.

C. G Wyche, of Greenville, for appellant.

Martin & Bolt, of Greenville, for respondent.

STABLER J.

This is an action for damages for personal injuries.

The complaint alleges, in substance, that the defendant is a foreign corporation, with a place of business in the city of Greenville, and is engaged in delivering meats by means of large high-powered trucks; that on November 1, 1929, one of its trucks, being driven along a highway near the city of Greenville, struck the plaintiff, a child less than six years of age, inflicting upon her serious and permanent injuries; that such injuries were caused by the negligent and reckless acts of the defendant, its agent and servant, in driving the truck, in a densely populated section, at a high and reckless rate of speed; in not having the machine under proper control; in failing to give notice or warning of its approach; in failing to take proper precaution, after seeing the child, to prevent striking her; and in swerving the truck out of the highway onto the plaintiff after she had crossed same.

The defendant interposed a general denial, and pleaded the further defense: ""That the injuries and damages complained of in the complaint were caused by plaintiff suddenly darting out in front of defendant's automobile without any warning or notice to the driver and in such a sudden manner that the defendant did not have opportunity or time within which to stop the automobile and avoid striking the child, and said injuries and damages were due to an unavoidable accident."

The jury found for the plaintiff $2,200 actual, and $300 punitive, damages, and the defendant appeals.

The court gave the following instructions to the jury: "Where a person is suddenly confronted with a dangerous situation, where he is not in fault in bringing about that situation, he must do his best to avoid harming any one, but in coming to that conclusion it is not an afterthought, that is to say it is not like looking at the situation when no peril exists and having time to figure it out that a man could figure it out and see by which it could be avoided, but you must take into consideration the time, the emergency and the need of quick decision. A person though who brings about that trouble by his own conduct, brings about the perilous situation through his own negligence would not avoid liability for injury on the ground that his act was done in stress of emergency, but if he didn't bring about the perilous situation, then his acts under stress of emergency, as I stated to you, would not be held as strictly accountable as if an emergency or perilous situation had not existed."

The appellant complains that this charge was error, as the court was here instructing the jury as to the law of sudden emergency and should have charged that, "if the defendant was confronted with a sudden peril through no fault of his own and was compelled to act one way or the other and he acted as a man of ordinary reason and prudence, he would not be held responsible in damages." The theory of the defense was that the collision was an unavoidable accident caused by the plaintiff's suddenly darting out from behind another automobile, which, in turn, caused defendant to swerve suddenly to the right in an effort to avoid striking her, and that, under such circumstances, the plaintiff was not entitled to recover damages. Respondent's position is that the law of sudden emergency was not applicable in this case, because the evidence showed that the driver of the truck, an agent of the defendant, created the emergency and brought about the perilous situation. We do not agree with this position. The evidence as to the creation of the emergency was in sharp conflict, making a question of fact for the jury under proper instructions. Neither do we agree with appellant. In his general charge, the court told the jury that, in reaching a decision, they should take into consideration all the conditions and circumstances of the accident, using as a standard, in determining whether due care had been exercised, that degree of care which a person of ordinary reason and prudence would have used under the same circumstances.

In addition, the following requests of the appellant...