Taylor v. Bridgebuilders, Inc.
| Decision Date | 11 August 1980 |
| Docket Number | No. 21282,21282 |
| Citation | 275 S.C. 236,269 S.E.2d 337 |
| Court | South Carolina Supreme Court |
| Parties | Chester M. TAYLOR, Administrator of the Estate of Russell W. Taylor, Plaintiff-Respondent, v. BRIDGEBUILDERS, INC., Defendant-Appellant, and Virginia R. Elvington and Thomas L. Monahan, as Co-Administrators of the Estateof Edgar Eugene Elvington, Defendants-Respondents. |
C. Dexter Powers, Florence, and W. B. Hawkins and J. D. McInnis, both Dillon, for defendant-appellant.
David W. Keller, Florence, and A. Glenn Greene, Latta, for plaintiff-respondent.
Kermit S. King, Dan Shine and Sally C. Copeland, Columbia, and Hugh L. Willcox, Sr., of Florence, for defendants-respondents.
The automobile in which the respondents driver and passenger were riding struck an uncompleted bridge, being constructed by appellant Bridgebuilders, Inc., under a contract with the State Highway Department. Both the driver and passenger were killed. Thereafter, the administrator of the estate of Russell Taylor, the owner-passenger, brought this action against the estate of Edgar Elvington, the driver, and appellant Bridgebuilders, Inc., the bridge contractor, to recover for Taylor's alleged wrongful death. The estate of Elvington, the driver of the vehicle, cross-claimed against Bridgebuilders, for the wrongful death of Elvington. Upon the trial, a jury returned a verdict against Bridgebuilders in the amount of $21,000.00 actual damages for the owner-passenger's estate and $51,000.00 actual damages, for driver's estate. Bridgebuilders has appealed, challenging (1) the sufficiency of the evidence to sustain liability, (2) the exclusion of certain testimony, and (3) the application of Section 15-1-300, 1976 Code of Laws of South Carolina, referred to as the comparative negligence statute. We affirm.
Because the determination of the challenge to the sufficiency of the evidence is dependent on the applicable principles of negligence, we initially consider appellant's contention that the comparative negligence statute, Section 15-1-300, is unconstitutional.
The record indicates that no constitutional objection was raised until the appellant's motion for judgment n. o. v. Since a motion for judgment notwithstanding the verdict relates back to the point in the trial when a motion for a directed verdict was made, it is limited to the previously presented grounds. Government Employees Ins. Company v. Mackey, 260 S.C. 306, 195 S.E. 830. This issue is therefore not preserved for consideration on appeal. Accordingly, Section 15-1-300 controls the analysis of the sufficiency of the evidence since it was applicable at the time this case was tried. See Stockman v. Marlowe, 271 S.C. 334, 247 S.E.2d 340.
With reference to the contention that the evidence was insufficient to sustain liability, the appellant argues that the negligence of the driver and passenger so exceeded its degree of culpability as to bar the respondents from recovery under the provisions of Section 15-1-300. We disagree.
Section 15-1-300 Contributory negligence shall not bar recovery in motor vehicle accident action.
In any motor vehicle accident, contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such contributory negligence was equal to or less than the negligence which must be established in order to recover from the party against whom recovery is sought.
We have previously construed application of this provision in Stockman, supra, and indicated the legislature intended that the jury evaluate the culpability of each party as compared to that of the other, barring the plaintiff from recovery only if his fault is greater than that of the defendant. With this premise in mind, we review the evidence in the light most favorable to the respondents.
In an effort to upgrade a residential road into a thoroughfare, the Highway Department undertook a project in Florence County to convert Holcombe Road to four lane service and to use a bridge over Jeffrey's Creek to extend it beyond Woodland Street with which it had previously made a "T" intersection. The crossing of the top of the "T" created a loop which could better service heavy traffic. Bridgebuilders, Inc. was hired to construct the bridge.
The highway department, pursuant to Section 56-5-920, South Carolina Code of Laws, 1976, adopted a manual of standards for highway traffic control warning devices to be used during street and highway construction. Additionally, this minimum standard of care was incorporated into the actual contract under which Bridgebuilders was employed. It is undisputed that despite these requirements for numerous warning devices, the only devices employed by Bridgebuilders were movable barricades from which two signs were displayed. The inadequacy of a barricade warning device is compounded by the fact that the approach to the bridge was complete in all aspects including curbing, sidewalks and lane markings, which was an unusual order of completion according to the president of Bridgebuilders. Therefore, the only indication of nonuse of the highway was the barricade warnings.
At a pre-construction conference, the Highway Department's supervising engineer cautioned Bridgebuilders as to the recurrent vandalism problems and the resulting need for frequent inspection of traffic warning devices. Testimony as to the repeated lack of barricades in the approach lanes to the bridge during the contractor's two week absence from the job site, and the presence of car tracks made at high speed within the barricaded area is abundantly sufficient to warrant the conclusion that there was no proper inspection and maintenance of the barricades. Furthermore, the presence of litter from persons using the area served to further place Bridgebuilders On the night in question, the respondents had been seen about 25 minutes before the collision at a local lounge drinking beer. The driver did not appear to be under the influence, while the owner-passenger did appear to be under some influence, although "not acting drunk." After leaving the lounge, the duo apparently sped down Holcombe Road, through the right hand lane which had no barricade. Shortly thereafter, the pavement ended at the foot of the unfinished bridge. The car was unable to stop, became airborne and struck the concrete foundation support for the eventual floor of the bridge.
on notice that the highway was being used by the public.
There were no eyewitnesses to the accident and expert testimony was used to establish the vehicle's rate of speed. They estimated the car's speed at 70 to 75 miles per hour at the time of initial braking and 53 to 58 miles per hour at the time of impact. Blood alcohol tests revealed a level of .061 and a .113 percentage for the driver and owner-passenger respectively.
The existence of the completed approaches to the bridge site, without warning of the uncompleted bridge, acted as an invitation to the public to travel the highway, oblivious to the danger ahead. There was ample evidence from which to charge appellant with knowledge of the absence of warning devices at the scene. In view of the magnitude of the danger posed by the uncompleted bridge on a completed roadway and the failure of appellant to adequately warn the travelling public of its presence, we think the degree of culpability of the parties was factual and properly submitted to the jury for determination. We cannot soundly hold, as a matter of law, that respondents would have proceeded to their death, even if adequate warnings had existed, or that their actions in proceeding without warning into the uncompleted bridge constituted a greater degree of negligence than the conscious failure of appellant to warn them of the danger ahead.
Appellant has additionally challenged the trial judge's exclusion of certain testimony relating the speed of the vehicle. The question of its competency need not be determined. It is undisputed that respondents were speeding at the time and the testimony in question was simply cumulative on the issue. Its exclusion was, therefore, not prejudicial. Crouch v. Cudd, 158 S.C. 1, 155 S.E. 136.
Judgment is accordingly affirmed.
I concur in the result reached by the majority opinion insofar as the claim of the passenger in concerned. I dissent insofar as the claim of the driver is concerned. A treatment of the issues involved requires a more full statement of the facts, as well as an analysis of the applicable law.
This action arose out of a one-car collision which killed two men at approximately 2 o'clock in the morning of December 2, 1976, about two blocks outside the city of Florence. The TransAm Pontiac in which they were riding left the end of a newly-constructed roadway at a high rate of speed and struck a concrete piling of an incomplete bridge. Their bodies were found after sunrise the same morning. There are no living eye-witnesses to the occurrence and much of the evidence presented to the court was circumstantial.
Russell W. Taylor owned, or at least had possession of, the TransAm and was riding in it as a passenger. I will refer to him as the owner-passenger. The vehicle was being driven by Edgar Eugene Elvington, whom I will refer to as the driver. The administrator of the estate of the owner-passenger commenced this action against the driver and against Bridgebuilders, Inc., the company which was constructing the bridge for the State Highway Department. The complaint alleged that his death was proximately caused by the negligence of both the driver and Bridgebuilders. The The answer of Bridgebuilders asserts a general denial, contributory negligence and joint enterprise.
gist of the negligence allegations against Bridgebuilders is...
To continue reading
Request your trial
-
Washington v. Whitaker
...it is well settled that a contemporaneous objection must be made to preserve an argument for appellate review. Taylor v. Bridgebuilders, Inc., 275 S.C. 236, 269 S.E.2d 337 (1980) (where no objection made to as to applicability of statute until motion for JNOV, issue not preserved). Here, Ci......
-
Langley v. Boyter
...larger legal problems causing him to resign from the Bar and as President of the United States.15 See Taylor v. Bridgebuilders, Inc., 275 S.C. 236, 269 S.E.2d 337 (1980), Stockman v. Marlowe, 271 S.C. 334, 247 S.E.2d 340 (1978) and Williams v. Barry, 271 S.C. 295, 247 S.E.2d 319 (1978) (cas......
-
Powers Const. Co., Inc. v. Salem Carpets, Inc.
...cumulative on the issue for which its introduction was sought; therefore, its exclusion was nonprejudicial. Taylor v. Bridgebuilders, Inc., 275 S.C. 236, 269 S.E.2d 337 (1980); Crouch v. Cudd, 158 S.C. 1, 155 S.E. 136 (1930). III. Salem also charges the trial judge with error in excluding o......
-
Henderson v. St. Francis Community Hosp.
...for directed verdict. See Pemberton v. Reliance Insurance Co., 83 N.C.App. 289, 350 S.E.2d 103 (1986); cf. Taylor v. Bridgebuilders, Inc., 275 S.C. 236, 269 S.E.2d 337 (1980). The trial court, without reaching the issue of notice, held St. Francis had not breached its duty of exercising ord......