Toole v. Salter, 18639
| Decision Date | 28 April 1967 |
| Docket Number | No. 18639,18639 |
| Citation | 249 S.C. 354,154 S.E.2d 434 |
| Parties | Louise TOOLE, Respondent, v. Ann SALTER, Appellant. |
| Court | South Carolina Supreme Court |
Henderson, Salley, Cushman & Bodenheimer, Aiken, for appellant.
Henry Busbee, Aiken, for respondent.
This is an action brought by Louise Toole, the respondent herein, against Ann Salter, the appellant herein, to recover damages for personal injuries and property damages sustained on August 30, 1964, as a result of a collision between a Ford Falcon automobile owned and being operated by the respondent, and a parked Chevrolet automobile owned by the appellant.
The respondent alleges in her complaint that the collision occurred after dark on a highway known as Pine Log Road near the intersection of said Highway with State Highway No. 421 in the Village of Warrenville, Aiken County, South Carolina. It was further alleged that the collision resulted from the negligence and carelessness on the part of the appellant in that she parked her automobile and allowed such to remain so parked unlighted in a residential zone, in the Village of Warrenville, in such manner as to block her lane of travel upon said road, as she was proceeding on the right side of the center of the road in a westerly direction, obeying traffic rules and regulations, meeting several cars traveling east at said point, with their headlights burning; and respondent was unable to see the appellant's parked automobile until too close to prevent the collision and her consequent injuries and damage. The appellant, by her answer, denied the material allegations of the complaint and set up the affirmative defense of contributory negligence and carelessness.
This case came on for trial before the Honorable James B. Morrison, Presiding Judge, and a jury. At the close of the evidence in behalf of the respondent, appellant made a motion for an involuntary nonsuit on the ground that there was no showing of any actionable negligence and carelessness on her part, it being contended that her car was parked in a legal manner and in a place where she had a right to park it. It was further contended that if there was any evidence of negigence and carelessness on the part of the appellant, then, as a matter of law, the respondent was guilty of contributory negligence and carelessness, which contributed as a proximate cause to her injuries and damage. The motion was refused on the ground that there was evidence that it was a dark night and there were no lights on the parked car of the appellant at the time of the collision, and such constituted a violation of Section 46--539 of the Code.
The appellant requested the trial judge to take judicial notice of the time of the setting of the sun on August 30, 1964, in the area where the collision occurred. In support of such request an almanac and a computation were tendered showing the time of the setting of the sum as being between 6:54 and 6:58 P.M. on said date. Counsel for the respondent objected and the trial judge refused to take judicial notice of the time of the setting of the sun on the ground that it was not relevant under the testimony.
At the close of all the testimony, the appellant made a motion for a directed verdict in her favor and such was based on the same ground as her motion for a nonsuit. This motion was refused. The jury returned a verdict in favor of the respondent for actual damages. The motion of the appellant for judgment Non obstante veredicto and, in the alternative for a new trial, was likewise refused. This appeal followed.
The first question for determination is whether there was error on the part of the trial judge in refusing the motions of the appellant for a nonsuit, directed verdict and judgment Non obstante veredicto upon the ground that the appellant was not guilty of negligence and, if it be concluded that she was, then the negligence of the respondent contributed as a proximate cause of her injuries.
It is well settled that negligence or contributory negligence must be determined by consideration of all the relevant surrounding circumstances. Ordinarily, contributory negligence is an issue for the jury and it rarely becomes a question of law for the court. Where, under all of the circumstances the evidence is susceptible of more than one reasonable inference as to whether a person is guilty of negligence or contributory negligence, the case must be submitted to the jury.
We briefly recite the evidence which required the trial judge to submit the issue of negligence on the part of the appellant and of contributory negligence on the part of the respondent to the jury. The evidence considered in the light most favorable to the respondent discloses that the appellant parked her automobile on her left side of Pine Log Road, a heavily traveled paved highway, unattended and unlighted on a dark night, and the said automobile was parked a sufficient distance away from the curb so as to cause it to protrude into the traveled portion of said highway and such blocked or prevented the respondent, who was using said highway, from passing to the left of said car in safety while facing oncoming lighted automobiles. The testimony in behalf of the appellant shows that the collision of respondent's car with hers took place at a time when it was not necessary for her car to have lights thereon and when visibility was such that her parked car could be seen for a distance of at least 2/10 of a mile. There was also testimony that the parked car of the appellant was not more than eighteen inches from the curb of the street. The appellant charged the respondent with operating her automobile without maintaining a proper lookout and asserted that if she had used care she could have avoided colliding with appellant's parked car.
We think, under the evidence heretofore briefly recited, that an issue of fact for jury determination was presented as to whether ...
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...admissible unless otherwise incompetent." State v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 403 (1986) (citing Toole v. Salter, 249 S.C. 354, 361, 154 S.E.2d 434, 437 (1967)). Evidence is incompetent if it could create dangers such as prejudice, undue delay, confusion of the issues, tend......
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