Utsey v. Williams

• Citation: 229 S.C. 176,92 S.E.2d 159
• Decision Date: 05 April 1956
• Docket Number: No. 17142,17142
• Parties: Walter S. UTSEY, Respondent, v. Andrew T. WILLIAMS et al., Appellants.
• Court: South Carolina Supreme Court

Page 159

92 S.E.2d 159

229 S.C. 176

Walter S. UTSEY, Respondent, v. Andrew T. WILLIAMS et al., Appellants.

No. 17142.

Supreme Court of South Carolina.

April 5, 1956.

Hagood, Rivers & Young, Charleston, for appellants.

J. D. Parler, N. H. Hamilton, St. George, for respondent.

OXNER, Justice.

This action stems from a collision between a Pontiac automobile driven by appellant and a Chevrolet truck driven by respondent, which occurred about 5:00 A.M. on July 27, 1953 on Highway No. 15 in the village of Grover, Dorchester County. The front of each vehicle was damaged in what the highway patrolman termed as 'more of a head-on collision', and respondent and several occupants of the Pontiac received personal injuries. Alleging negligence, recklessness and willfulness on the part of appellant, respondent brought this action to recover actual and punitive damages, and the Pontiac automobile was attached. Appellant denied all charges of negligence and recklessness and set up a plea of contributory negligence, recklessness and willfulness. On the trial of the case, counsel for appellant timely made a motion for a nonsuit and later for a directed verdict upon the grounds that there was no proof of actionable negligence and that respondent was guilty of contributory negligence, willfulness and recklessness as a matter of law. These motions were refused. The jury returned a verdict in favor of respondent for $1,700 actual damages. Appellant thereupon made a motion for judgment non obstante veredicto or in the alternative for a new trial. This motion was also denied.

The effect of the verdict of the jury for only actual damages was to absolve appellant from the charges of recklessness and willfulness. The question now is whether respondent was guilty of contributory negligence as a matter of law. If so, the motion for judgment non obstante veredicto should have been granted. Taylor v. Atlantic Coast Line Railroad Co., 217 S.C. 435, 60 S.E.2d 889; Mozingo v. Atlantic Coast Line Railroad Co., 220 S.C. 323, 67 S.E.2d 516.

In the village of Grover Highway No. 15, which runs approximately north and south, is an asphalt road 54 feet wide with a line in the center. When the collision occurred about 5:00 A.M., it was dark and there was a misting rain. There were no street lights. Respondent resided in the village of Grover on the east side of Highway No. 15. Early on the morning of the accident he went to his brother's house and in returning home entered Highway No. 15 from a secondary road at a point several hundred feet north of his residence. When he reached Highway No. 15, he stopped and looked for approaching vehicles. His vision to the south extended a distance of approximately a tenth of a mile. There being no cars in sight, he entered said highway, made a sharp left turn and proceeded on the left side of the highway toward his home, driving closely to the curb. He says that when he had gone a distance of 75 or 80 feet, he noticed a car coming over the hill from the south at a speed estimated by him to be 60 miles an hour. He then stopped and put on his parking lights. Just before the collision the driver of the Pontiac turned to the right and then suddenly back to the left. According to respondent, the vehicles collided on the extreme east side of the highway. Respondent's only explanation for driving on the left side of the road was that it was more convenient to do so than to drive across the center, make a left turn and then drive several hundred feet and make another left turn into his yard. We take the following from his testimony.

'Q. Mr. Utsey, when you came up to that stop sign, you looked and saw nothing coming? A. No, sir.

'Q. And you could have gone on across the road couldn't you? A. Yes, sir, I could have.

'Q. As a matter of fact you traveled a hundred feet before this accident, didn't you? A. Seventy-five or a hundred.

'Q. It is only a fifty-four foot road? Is that correct? A. Yes, sir.

'Q. You could have gone across there the same time it took you to go down, couldn't you? Isn't that right? A. I guess so.

'Q. And you deliberately turned and went down the left side of the highway? A. I always did.

'Q. You deliberately did? Isn't that correct? A. Yes, sir.

'Q. You deliberately went down there? A. That is right.

'Q. When you were going down there, you were going to park in your yard, weren't you? A. Yes, sir.

'Q. You were going to park the truck in your yard when you got home? A. Yes, sir.

'Q. And is it easier to go in your driveway like that or to go across and wait for traffic before you turn into your driveway? A. Well, I would have to go fifty-four foot across and fifty-four foot back.'

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* * *

'Q. Now, Mr. Utsey, when did you first see this car that was coming? A. When it was coming across the hill.

'Q. How far away is that? A. About a mile, I mean about a tenth.

'Q. A tenth of a mile. You could have seen that car another tenth of a mile, couldn't you? A. Sir?

'Q. You could have seen that car coming for another tenth of a mile couldn't you? You could have seen his lights? A. No, sir.

'Q. You could not have seen his lights? A. No, sir.

'Q. What would have kept you from seeing them? A. It was rainy, I guess, or something. I don't know.

'Q. But it was only a slight drop in that hill, wasn't it? A. Well, it was a drop; about a tenth of a mile.

'Q. It is a tenth of a mile from where the road intersects down to the hill, isn't it? A. Yes.

'Q. And then for another tenth you could see lights of a car coming at night, can't you? A. Yes, sir.

'Q. You did not see the lights coming? A. No, sir, it was raining. I guess that was the reason.

'Q. Did you have your windshield wiper working? A. Yes, sir.

'Q. Are there any street lights around there? A. No, sir.'

The highway patrolman, who arrived at the scene several hours after the accident, said he smelled the odor of alcohol on respondent and that he 'was still in a daze and had been drinking.' As to this, respondent said: 'I don't remember drinking any that night and I am positive I did not drink any that morning.'

Appellant resided in Philadelphia and at the time of the accident was returning home from Boston, Georgia, with his wife and several relatives. He was unfamiliar with the highway. As he approached the village of Grover from the south, the highway widened from approximately 26 feet to 54 feet and there was a sign showing a speed zone of 35 miles per hour. He said that he saw the sign, reduced his speed from around 45 to 35 miles an hour, an when he first saw respondent's car it was approximately 300 feet ahead of him, near the center line, on the wrong side of the road, with the headlights shining in his face. He described what happened then as follows: 'I tried to turn my car to the right because when I saw him I thought maybe there was a curve. I did not know. I...