Taylor v. South Carolina State Highway Dept.

• Citation: 130 S.E.2d 418,242 S.C. 171
• Decision Date: 28 March 1963
• Docket Number: No. 18044,18044
• Court: United States State Supreme Court of South Carolina
• Parties: William D. TAYLOR, Appellant, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Respondent.

Page 418

130 S.E.2d 418

242 S.C. 171

William D. TAYLOR, Appellant, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Respondent.

No. 18044.

Supreme Court of South Carolina.

March 28, 1963.

McLeod & Singletary, John A. Mason, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. James S. Verner, Fulmer & Barnes, Columbia, for respondent.

BRAILSFORD, Justice.

Plaintiff was seriously injured when an automobile in which he was a passenger collided with the rear end of a tractor-trailer of Southeastern Sand Company. The tractor-trailer was stopped in plaintiff's lane of travel behind a motor grader of the Highway Department. Plaintiff brought this action against the Sand Company and the Department. He took a voluntary non-suit as to the Sand Company. At the conclusion of all of the testimony the trial judge directed a verdict in favor of the Department and plaintiff has appealed on exceptions which raise two issues--whether a reasonable inference may be drawn from the evidence that the operator of the motor grader was guilty of actionable negligence, and whether plaintiff was guilty of contributory negligence as a matter of law. Our conclusion as to the first issue makes it unnecessary for us to pass on the second.

The collision occurred on a clear morning in April, 1960, on Highway 321, several miles north of the city limits of Columbia. Plaintiff and his companion were traveling from Columbia toward Chester, in the proper lane for north bound traffic. An employee of the Highway Department was engaged in scraping a deposit of clay from a segment of this lane of the highway. The clay had been dropped by trucks entering the highway from a clay pit and extended in a northerly direction some five or six hundred feet toward Crane Creek. The motor grader made one run from the entrance to the clay pit to the end of the deposit. This did not clear the highway and the operator commenced backing to get into position for another run. He testified that he watched for traffic in both directions and saw the sand truck as it rounded a curve about 1000 feet south of him. He continued to back for about 50 feet; then, seeing an automobile approaching from the opposite direction, he stopped in the north bound lane to wait for traffic to clear. He also saw the car in which plaintiff was traveling as it rounded the curve, at least three or four hundred feet behind the sand truck. He further testified that the sand truck came to a gradual stop behind the motor grader. After an interval of 2 or 3 seconds, the south bound car passed in the opposite lane; in another second or two he heard the noise of the collision which resulted in plaintiff's injuries and in the death of his companion.

Plaintiff testified that as a result of his injuries he has suffered a loss of memory as to the events immediately preceding the collision. He recalls leaving home and driving along Highway 321 for several miles in a 35 mile per hour speed zone. This limitation on speed was adhered to by the driver and nothing unusual attracted plaintiff's attention. He does not recall reaching the end of the 35 mile per hour zone, which terminated on the down grade side of a hill on a slight curve (approximately two degrees) overlooking the scene of the collision and Crane Creek. He does not remember seeing the tractor-trailer or the motor grader and remembers nothing of the accident itself, except as follows:

'Q. What is, or what recollection, if any, do you have concerning the accident itself?

'A. The thing that is in my mind is that we were riding along in the car, and everything was just smooth and normal, and all of a sudden, i saw this cloud of dust--it seemed to be real prevalant like, all over the front of the car--and I threw my hands up in front of my face, and that is all that I remember: throwing my hands up in front of my face when I saw the dust cloud.

'Q. At the moment you saw the dust cloud, what was the position of the car in which you were riding in relation to the cloud of dust?

'A. We were entering it. I believe that we were, you know, driving into it.

'Q. Well, how far away from that dust cloud were you when you have this recollection of seeing it?

'A. Oh, like at the end of the hood. We were just driving right into it.

'Q. Right at the end of the hood?

'A. Yes, sir.

* * *

* * *

'Q. Were you rendered unconscious by the impact?

'A. Yes, sir.

'Q. Do you have any recollection of anything happening at the scene of the accident?

'A. Nothing at all.'

The investigating highway patrolman was called as a witness by plaintiff. He arrived at the scene shortly after the collision and found the tractor-trailer in the north bound lane. The front of the automobile was jammed between the rear wheels of the trailer. No skid marks or brake marks had been made by either vehicle. The motor grader 'had been pulled over.' There was a considerable amount of dirt on the highway and it was dry. The point of impact was 217 feet north of the clay pit road and it was apparent that the road surface had been scraped from this road to a point considerably north of the point of impact. There were no signs in place indicating that work was in progress on the roadway. One approaching the scene of the collision from the south has a clear view of it for a distance of about 1000 feet.

The motor grader was of conspicuous size and color--6 feet, 5 inches wide, 8 feet, 6 inches tall and 19 feet, 7 inches long and painted yellow.

A map of the segment of highway in question and photographs of it were offered in evidence by plaintiff. The map commences at the 55-mile speed limit sign on the south and extends to Crane Creek on the north. The intervening distance is 1700 feet. One of the photographs was taken in the north bound lane from a point south of the 55-mile sign. This sign, the back of the 35-mile sign on the opposite side of the highway, the patrolman standing at the point of impact (more than 900 feet north of the sign), the east rail of Crane Creek bridge (1700 feet north of the sign) and the highway for a considerable distance beyond the bridge are in clear view. As indicated, this 55-mile sign is located on a downgrade and slight curve. The photograph and map show clearly that the topography for some distance south of the sign and for at least 400 feet north of it is such as to prevent intervening traffic from obstruction a motorist's view of the highway between the clay pit road and Crane Creek. In other words, plaintiff and his companion had a clear view of the tractor-trailer and of the motor grader from a point south of the 55-mile sign to a point four or five hundred feet north of it. However, the highway is flat and straight for the last four or five hundred feet south of the point of impact and it is reasonable to infer that the tractor-trailer did obstruct their view of the motor grader after they reached this section of the highway.

In their brief, able counsel for the appellant contend that the evidence, when construed in the light most favorable to him, as required, is reasonably susceptible of the inference that the operator of the motor grader was negligent in these particulars: (1) in not placing signs or flagmen to warn approaching motorists of the work being done on the roadway; (2) in continuing to back on the highway for a distance of 50 feet after he observed the approach of the sand truck in the lane occupied by him; and (3) in stopping on the main or traveled portion of the highway when it was practicable to stop off such part of the highway. All of which, quoting from the brief, 'caused the sand truck to stop in such a manner as to create a cloud of dust, obscuring the vision of the following vehicle and resulting in the collision between the sand truck and the automobile in...