Suber v. Smith

• Decision Date: 16 January 1964
• Docket Number: No. 18158,18158
• Citation: 134 S.E.2d 404,243 S.C. 458
• Court: South Carolina Supreme Court
• Parties: George W. SUBER, Appellant, v. Rachel SMITH and Billy Smith, a minor over the age of fourteen years, by his guardian ad litem, Herber L. Smith, Respondents.

Page 404

134 S.E.2d 404

243 S.C. 458

George W. SUBER, Appellant, v. Rachel SMITH and Billy Smith, a minor over the age of fourteen years, by his guardian ad litem, Herber L. Smith, Respondents.

No. 18158.

Supreme Court of South Carolina.

Jan. 16, 1964.

Harley & Parr, Newberry, for appellant.

Thomas H. Pope, Robert D. Schumpert, Rembert D. Parler, Newberry, for respondents.

MOSS, Justice.

George W. Suber, the appellant herein, brought this action for property damage alleged to have been caused by the actionable negligence and willfulness of Rachel Smith and Billy Smith, the respondents herein. The action stems from an automobile collision which occurred about 10:15 P.M., on September 9, 1962, on Highway 219, in Newberry County, when an automobile owned by Rachel Smith and driven by her minor brother, Billy Smith, collided with the rear of a Ford automobile owned by the appellant and driven, with his permission, by his minor son, Jerry Suber.

It is stipulated that the appellant's action is grounded on specified acts of negligence and recklessness alleged to be the proximate cause of his property damage. The respondents, by their answer, set forth (a) a general denial, (b) that the damage to appellant's automobile was the sole, direct and proximate result of specified acts of negligence and recklessness of the driver of his automobile, and (c) contributory negligence and recklessness of such driver.

The complaint charges that Billy Smith was guilty of carelessness and willfulness in operating an automobile without having same under proper control, in failing to keep a proper lookout, in driving at an excessive rate of speed, in operating an automobile without proper brakes and failing to apply such brakes, and that there was sufficient space on the highway to the left of appellant's car for the said Billy Smith to have safely driven his vehicle around said car to the left but failed so to do. The respondents, by their answer, alleged that the appellant's property damage resulted from the sole, direct and contributory negligence and willfulness of his son, Jerry Suber, in the operation of his said automobile, in failing to keep such under proper control, in failing to keep a proper lookout and illegally parking the said automobile on the traveled portion of said highway, in failing to have proper lights while so parked and in failing to give any warning to the respondents that the said automobile was illegally parked in said highway.

This case came on for trial before the Honorable William L. Rhodes, Jr., presiding Judge, and a jury, at the December 1962 term of Court. At the conclusion of appellant's testimony, the Trial Judge, upon motion of the respondents, granted a nonsuit holding that the driver of appellant's car was guilty of contributory negligence and that the conduct of Billy Smith could, at most, be characterized as simple negligence. The appellant resisted the motion on the ground that the last clear chance doctrine was applicable to the factual situation here. The Trial Judge held such doctrine inapplicable. This appeal followed.

The first question for determination is whether there was evidence from which the jury could find that it was not practicable for the driver of the appellant's automobile to have stopped it off of the paved or main traveled portion of the highway.

The evidence shows that on the night of September 9, 1962, Jerry Suber, Bryson Slice and Billy Smith were at a service station near the City of Newberry. Shortly after 10:00 o'clock Jerry Suber and Bryson Slice left in the appellant's automobile, with Jerry Suber driving, for the purpose of taking Bryson Slice to his home. The car was driven from the service station in a northerly direction along U. S. Highway 76 to the intersection of Highway 219. Upon reaching this intersection, the car was driven in a easterly direction along said Highway 219 for a distance of approximately four-tenths of a mile, at which point Jerry Suber stopped the said automobile and left it standing partly on and partly off the maintraveled portion of said Highway 219. The automobile's engine was left running, the lights remained on and both boys left the automobile for the purpose of 'relieving' themselves in the woods adjacent to said highway. At the time and place in question there was no other vehiclular traffic in the immediate vicinity of the stopped automobile. The paved portion of the road was twenty-four feet in width and there was a 'good-grass' shoulder on the right side of the road. There was no testimony as to the width of the grass shoulder but the land area beyond such was four feet lower than the pavement and shoulder. The right wheels of the appellant's automobile were approximately two feet onto the grass shoulder, with the remaining portion of the automobile being on the paved portion of said highway. It was testified that there was a clear view for a distance of three-tenths of a mile of the rear of the appellant's car.

When the two boys returned from the woods, Jerry Suber got in the driver's seat with Bryson Slice sitting to his right. Upon re-entering the automobile Jerry Suber put the car in gear, let off the hand brakes and looked in the rearview mirror to see if any vehicles were approaching and saw none. Jerry Suber testified that on a second look he saw the lights of a car and decided to remain parked where he was until after the other car had passed him. The car which Jerry Suber saw was traveling east on Highway 219 and was being operated by Billy Smith. This vehicle collided with the left rear of the stopped Suber automobile, the place of impact being on the main traveled portion of said highway. It is undisputed that the Suber automobile was not stopped on the highway as the result of any mechanical defect or because it was disabled. The place where the appellant's car was stopped on the highway was outside of a business or residence district.

It is provided in Section 46-481 of the 1962 Code that upon a highway outside of a business or residence district 'no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon a paved or main-traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of such highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway.' The aforesaid section does not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.

We have held that in an action for damages arising out of collision with a vehicle standing on the highway, the burden of proving the necessity for stopping a vehicle on the main-traveled portion of the highway where practicability of moving it off such portion, within the meaning of the aforesaid statute regulating stops on the highway, is on the person who makes such stop. Ayers v. Atlantic Greyhound Corp., 208 S.C. 267, 37 S.E.2d 737, and Howey v. Jordan's, Inc., 223 S.C. 71, 74 S.E.2d 216. When it is necessary for a motorist to stop his vehicle along the road, he has the duty, where it is reasonably possible, to drive until he finds a space to stop off the traveled portion of the road. LaFlamme v. Lewis, 89 N.H. 69, 192 A. 851. It has also been held that if there is sufficient space for stopping off the traveled portion of the highway or if there is a driveway or side road near, and the stopping motorist is able to move his vehicle into that area, he may be charged with negligence in failing to do so. It is no excuse for the violation of such a statute that the driver was in the vehicle and at the wheel at the time it was left standing on the highway. Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881.

The only reason advanced by the appellant for the stopping of his automobile on the highway was that the automobile driver and his passenger had to 'relieve' themselves. The record shows that the driver of the Suber automobile was completely familiar with the highway on which he was traveling. It is undisputed that approximately a quarter of a mile from the place where the collision took place a car could have been completely parked off of the highway. Since the appellant's automobile was not disabled, it was the duty of the driver thereof to keep moving until he came to a place to park outside of the traveled portion of the highway. The reason advanced by Jerry Suber, the son of the appellant, is an insufficient justification for the violation of Section 46-481 of the Code. W...