Watson v. Aiken, E-176812

Citation243 S.C. 368,133 S.E.2d 833
Decision Date17 December 1963
Docket NumberNo. 18144,A,No. E-176812,E-176812,18144
CourtUnited States State Supreme Court of South Carolina
PartiesJ. B. WATSON, Administrator of the Estate of Jimmy Gantt Watson, Respondent, v. Harold L. AIKEN and one 1954 Pontiac Tudor Automobile, 1961 S. C. Licenseppellant.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Harold N. Morris, Paul Montjoy, Greenville, for respondent.

BRAILSFORD, Justice.

This action for the alleged wrongful death of eight year old Jimmy Gantt Watson resulted in a verdict for plaintiff and defendant has appaled on the ground that the court erred in refusing his motion for a directed verdict. The issue must be resolved by determining whether the evidence, viewed in the light most favorable to plaintiff, is sufficient to support a reasonable inference that the defendant was guilty of actionable negligence in the operation of his automobile, which struck a coaster wagon in which the child entered the highway from a private drive.

As the defendant approached the scene from the east, traveling on a highway with which he was not familiar, his view of the driveway on his right was obstructed by an embankment on which tall grass and weeds were growing. This obstruction was more than 6 feet in height to a point near the highway, whence it tapered to a few inches in height at the entrance of the driveway. The driveway runs downgrade to the highway and the highway is downgrade in the direction of defendant's travel. At a point about opposite the driveway, Cely Road comes to a dead end in the highway traveled by defendant. The intersection is in a rural area and was unmarked by center line or highway sign.

The defendant was accompanied by his wife, seated in the middle on the front seat, and by J. Fred Roe, seated on the right side. Roe, who had not known the defendant previously, was directing him to a nearby pasture to see a milk cow which Roe had for sale.

As a witness for plaintiff, Mr. Roe testified that the defendant was driving about 40 miles per hour as he approached the scene. This witness estimated that when he first saw two boys and a wagon, they were 8 or 10 feet from the highway and the defendant's automobile was about forty to fifty feet from the driveway. Jimmy Watson was in the wagon and was being pushed rapidly toward the highway by the other boy, who was running behind it. This boy turned back after having taken a step onto the highway. The defendant, having promptly applied his brakes, almost succeeded in stopping his car before colliding with the wagon near the center of the road and did come to a complete stop within 8 or 10 feet from the point of impact. In the course of stopping, the automobile veered slightly to the left, about a foot according to the recollection of this witness. The left front of the automobile struck the wagon, 'which continued on across the road.'

The investigating patrolman testified that he measured the length of skid marks laid down by defendant's automobile to be 70 feet, 4 inches, and that the point of impact was in the center of the 18 foot roadway. He did not measure the distance from this point to where the car came to a stop, but, according to his best recollection, when he arrived 'it was still sitting in the road about where it happened.' This witness also measured a distance of 50 feet to where he found the wagon on the opposite side of the road from the driveway 'along the ditch banks,' and a distance of 18 feet from the wagon to a blood spot 'in the grass' from which the boy's body had been removed. It may be inferred that the measurement to the wagon was made from the point of impact.

Having summarized the testimony of the only two witnesses offered by plaintiff on the issue of actionable negligence, we turn now to the defense evidence, on some of which plaintiff relies.

The defendant testified that he approached the scene at a speed of about 35 miles per hour. He did not see the driveway before the children, who had been hidden by the embankment and vegetation, suddenly appeared in view. He immediately applied his brakes and undertook to veer to the left. The car had almost stopped before the collision and it continued forward only a few more feet, 'four or five feet at the most.'

Defendant did not undertake to estimate in feet the distance between the automobile and wagon when he first observed the latter. When asked on cross-examination for a rough estimate of how far the wagon was from the asphalt road when he first saw it, the witness replied:

'It would be hard to say without actually going back to the scene of the accident cause you got to look up the road as far as you can see into the driveway, which would be a very short distance, maybe three or four feet back from the actual shoulder of the road. Probably as far as you can see. In other words, I seen them as soon as they cleared the brush and stuff grown up where I could see them, but that was too late.'

The only other eye witness to testify was defendant's wife, whose testimony was consistent with that of the other two. She estimated her husband's speed at 35 miles per hour and stated that when she first saw the wagon, 'the little boy was pushing it very fast directly out into the road. * * * As he came into the road a foot or two on the pavement he must have seen the car; he whirled around instantly. * * * We were right on him when he whirled. I don't see how we missed him.'

The trial judge assigned no reason for his denial of defendant's motion for a directed verdict. In overruling an earlier motion for non-suit, he stated:

'I conclude the seventy foot marks undisputed, seventy foot eight inches, there's some indication of an unreasonable speed. In addition, the testimony at this stage of it is that there was only a slight turning to the left, at most, not more than twelve inches.

'As I understand it, it is an eighteen foot pavement, and that left on the other side of the road a total distance unobstructed and open road of nine feet. The testimony being susceptible to more than one reasonable inference as to negligence and proximate cause.

'The motion is respectfully overruled.'

There was no testimony that an automobile such as defendant's can be braked to a stop from a speed of 40 miles per hour in a lesser distance than 70 feet, 4 inches, nor is this established by the ordinary experience of mankind. Therefore, there is no support in the...

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3 cases
  • Estate of Haley ex rel. Haley v. Brown, 4140.
    • United States
    • Court of Appeals of South Carolina
    • 24 July 2006
    ...215 S.E.2d 426, 428 (1975) (stating the doctrine of sudden emergency is a part of the overall law of negligence); Watson v. Aiken, 243 S.C. 368, 373, 133 S.E.2d 833, 836 (1963) (observing when a person faces a sudden emergency, he is not to be judged in light of later events, but rather, is......
  • Herring v. Boyd
    • United States
    • United States State Supreme Court of South Carolina
    • 4 February 1965
    ...so suddenly that its driver cannot stop or otherwise avoid injuring him. Gunnels v. Roach, 243 S.C. 248, 133 S.E.2d 757; Watson v. Aiken, 243 S.C. 368, 133 S.E.2d 833; Williams v. Clinton, 236 S.C. 373, 114 S.E.2d 490; Critzer v. Kerlin, 231 S.C. 315, 98 S.E.2d 761; Porter v. Cook, 196 S.C.......
  • Mack v. Frito-Lay, Inc.
    • United States
    • United States State Supreme Court of South Carolina
    • 18 December 1963

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