Squires v. Henderson

• Decision Date: 21 January 1946
• Docket Number: 15795.
• Parties: SQUIRES v. HENDERSON.
• Court: South Carolina Supreme Court

36 S.E.2d 738

208 S.C. 58

SQUIRES v. HENDERSON.

No. 15795.

Supreme Court of South Carolina

January 21, 1946

M. M. Weinberg, of Sumter, and J. D. O'Bryan, of Kingstree, for appellant.

J. Frank Eatmon, of Kingstree, for respondent.

OXNER Justice.

Alton Squires died as a result of injuries received about 4 a. m. on August 4, 1944, while riding as a paying passenger in a taxicab owned by appellant and operated by one of his employees. This action was brought under the provisions of Sections 411 and 412 of the Code of 1942, familiarly known as Lord Campbell's Act, by the administratrix of his estate for the benefit of his widow and four children, to recover damages for alleged wrongful death. The trial resulted in a verdict and judgment in favor of respondent for $11,250 actual damages.

We shall first consider the contention of appellant that the evidence fails to show any actionable negligence on the part of the driver of the taxicab (Exception 3). This necessitates a brief review of the testimony. Sometime during the early morning of the day of the fatal accident respondent's intestate engaged one of appellant's taxicabs to transport him from Sumter to Gourdin, South Carolina, a distance not disclosed by the record. After proceeding approximately 40 miles and reaching a point on State Highway No. 261 about 2 1/2 miles southeast of Greeleyville, the taxicab left the highway, overturned, and respondent's intestate was thrown from the cab, resulting in his death almost instantly. The driver received only slight injuries. There were no other eyewitnesses to the accident. In behalf of appellant, the driver testified that the taxicab including the brakes, was in good mechanical condition; that as he reached a curve in the road, while traveling between 35 and 40 miles per hour, the right front tire suddenly went flat, causing the car to swerve to the right shoulder of the road; that he then tried to steer it to the left so as to get back on the pavement and lost control of the car; and that the car crossed the pavement to the left shoulder of the road, proceeded some distance and turned over twice. Appellant does not contend that this tire blew out. A highway patrolman, who inspected the car several days after the accident, testified that this tire 'was practically slick'; that the wheel did not show 'any dents around the rim'; and that he found no break in the casing. A farmer who lived about 400 yards from the scene of the accident testified that while at his tobacco barn he observed the taxicab passing; that it was traveling 'pretty fast'; and that while he did not see the accident, he heard 'the screaming of the tires and the tumbling of the car'. There were several witnesses who saw and talked to the driver within thirty minutes after the accident. They testified that while he was not drunk, they smelled alcohol. The driver denied that he was drinking, claiming that he only drank a bottle of beer on the morning of the previous day.

It is undisputed that the imprint of the tires was plainly visible for some time after the accident and the course of the car could be easily followed, but there is a sharp conflict in the evidence as to the nature or appearance of these tire marks. Several witnesses for respondent testified that the tread across the pavement was smooth and the marks resembled those made by an inflated tire, while several witnesses for appellant testified that at certain places there were 'rim marks' which resembled those made by a flat tire. A highway patrolman, who visited the scene during the afternoon of the day of the accident for the purpose of making an investigation, testified that he found tracks where a car left the pavement and entered the right shoulder of the highway at a point where there is a slight left curve in the road; that these car tracks extended along the grass of the right shoulder for a distance of 219 feet where they again entered the pavement; that from this point there were skid marks which were plainly visible extending a distance of 231 feet diagonally across the pavement; that the tracks then led from the pavement across the left shoulder to a broken place in a fence, a distance of 57 feet; and that they then extended across a pea field an additional 69 feet to a point where the car overturned. There is abundant testimony tending to show that these tracks and tire marks were made by the taxicab. According to the testimony of this patrolman, the taxicab traveled a total distance of 576 feet from the place where it first left the pavement to the point where it stopped.

Much of the testimony relied on by respondent to show actionable negligence on the part of appellant's driver is of a circumstantial nature. In Leek v. New South Express Lines, 192 S.C. 527, 7 S.E.2d 459, 462, the Court said 'It is incumbent upon the plaintiff, in the absence of direct evidence, to show the existence of such circumstances as would justify the inference that the injury which caused the death was due to the wrongful act of the defendant, and not leave the question to mere speculation or conjecture. The facts and circumstances shown should be reckoned with in the light of ordinary experience and such conclusions deduced therefrom as common sense dictates.' We must also bear in mind that appellant was a common carrier for hire and owed to respondent's intestate, a paying passenger, the highest degree of care. Poliakoff v. Shelton, 193 S.C. 398, 8 S.E.2d 494.

We think there was sufficient evidence to warrant the jury in rejecting the explanation of the accident as given by the driver and to justify the inference that his negligence was the proximate cause of the death of respondent's intestate.

We shall now consider certain exceptions imputing error in the admission of testimony. Exception 4 is to the effect that the Court erred 'in permitting the witness Long to give opinion evidence as to the cause of certain marks on the road.' This exception does not set forth or otherwise identify the particular testimony complained of. However, we shall waive this objection and consider it. From the brief of appellant's counsel we gather that the testimony complained of was that of a highway patrolman to the effect that the tire marks on the pavement 'appeared to be those of inflated tires.' This witness had previously testified without objection that 'there was a smooth tread', and that he did not find anything in the road 'to indicate all of the tires were not standing up at the time', and had previously been cross-examined by appellant's counsel as to whether there were 'any steel marks' on the road. Several witnesses for appellant thereafter testified, in response to questions by appellant's counsel, that the marks on the pavement were apparently made by 'the rim of a flat tire'. It should be further pointed out that the first reference to the appearance of these marks on the pavement occurred near the beginning of the trial during the following cross-examination of one of respondent's witnesses:

'Q. You saw fresh marks one place? A. Yes, where he (the driver) was telling me about how the wreck happened.

'Q. You saw a place where the tire had made a mark where the brakes were applied? A. Well, it was a mark.

'Q. Was it a rubber mark or a steel mark? A. Well, it was dark, I couldn't say.'

It appears from the foregoing that appellant's counsel first went into this line of testimony; that similar testimony by the witness Long was given without objection; and that later in the trial testimony along the same line was brought out by appellant from his own witnesses. Under these circumstances appellant is in no position to complain. Nock v. Fidelity & Deposit Co. of Baltimore, 175 S.C. 188, 178 S.E....