Watson v. Sprott

• Decision Date: 28 April 1926
• Docket Number: (No. 11969.)
• Citation: 133 S.E. 27
• Court: South Carolina Supreme Court
• Parties: WATSON . v. SPROTT.

133 S.E. 27

WATSON .

v.SPROTT.

(No. 11969.)

Supreme Court of South Carolina.

April 28, 1926.

Appeal from Common Pleas Circuit Court of Clarendon County; John S. Wilson, Judge.

Action by Sam Watson against C. N. Sprott. Judgment for defendant, and plaintiff appeals. Affirmed.

Dinkins & Stukes, of Manning, for appellant.

Charlton Du Rant and W. C. Davis, both of Manning, for respondent.

MARION, J. In an action by the plaintiff for the recovery of damages on account of personal injuries sustained in February, 1923, as the result of a collision with defendant's automobile on a highway, the jury found for the defendant. From judgment thereon, the plaintiff appeals. This is the second appeal in this cause, and the case contains the statement that "practically the same testimony was taken at the second trial as at the first" On the first appeal the plaintiff-appellant was the respondent, and his version of the facts is fully stated in the opinion of this court, reported in 126 S. E. 488.

The appellant's six exceptions make the two points: (1) That the circuit judge erred in charging the jury, "the act of 1924, cre ating zone or congested areas and increasing the speed limit from 25 miles to 35 miles per hour, when the accident involved in this suit occurred in 1923"; and (2) that the circuit judge committed reversible error in failing to charge the jury properly "as to the statutory requirements as to lights on automobiles." The first of appellant's foregoing points (exceptions 1 to 5 inclusive) is based upon certain of the statements contained in the following portion of the judge's charge:

"And it says, 'No person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper at the time and place, having regard to the traffic and use of the highway and its condition, or so as to endanger the life, limb or property of any person, or, in any event, at a greater rate than used to be 25 miles an hour, when this section was passed, but it has been amended by the act of 1924 (Act March 26, 1924 [33 St. at Large, p. 1182]), making it 35 miles an hour; not greater than 35 miles an hour. I take that to mean—although lawyers differ about that—I take it to mean that a man has no business to operate an automobile, under any circumstances, at a greater rate than 35 miles an hour. I take it that the law means it is against the law to run an automobile at a greater rate than 35 miles an hour; and that is why we have what we call 'cops' or policemen along the road to arrest people, so that they can catch them with motorcycles, and arrest them right there if they run over 35 miles an hour. 35 miles an hour is the limit. And not exceeding 20 miles an hour in the vicinity of populated districts, schools, and so on; and even then you must not go beyond any speed that will endanger people where you are passing through a congested section, and in any congested place you must not go at any speed i£ necessary to stop. The municipalities have the power to even lessen the speed in a town or congested place, but they must post these regulations if they differ from the statute."

It is contended that, since! one of the specifications of negligence contained in the complaint charged a violation by the defendant of the statutory speed limit and, since there was some evidence tending to establish that at the time of plaintiffs injury in February, 1923, the defendant was running his automobile at a speed in excess of 25 miles per hour, the trial judge, by referring to and stating the provisions of the act of 1924 as to the speed limit, etc., committed reversible error.

Appellant's right to have that contention sustained is to be considered in the light of the following facts and circumstances disclosed by the record: After the judge had charged the jury in the language above quoted, he said, "Now, there are certain requests here"-—referring to plaintiff's requests to charge—and intimated his intention to charge them. The first of these requests was as follows:

"(1) You are instructed that it is the duty of one operating an automobile on the publichighway to exercise due care to avoid injury to any one else upon the highway, and that the law of this state prohibits any person from operating a motor vehicle on the public highway at a rate of speed greater than is reasonable and proper at the time and place, having regard to the traffic and use of the highway and its condition, or so as to endanger the life, limb, or property of any person, or, at the time that plaintiff was injured, in any event at a greater rate than 25 miles per hour. 1922 Code, vol. 2, § 581."

The judge had started to read the foregoing request to the jury, when the following interruption by plaintiffs counsel occurred: "Mr. Stukes: If your honor please, we would like to withdraw No. 1 and No. 3; you have covered them in your charge." Thereafter the judge having charged the plaintiffs requests other than "No. 1 and No. 3" and certain requests of defendant, addressed to counsel the inquiry, "Anything else?"—to which no response was made.

In the circumstances indicated we are of the opinion that the plaintiff waived any right to complain of the trial court's instructions which are made the basis of his exceptions here. This second trial was had in June, 1925, and the trial judge's reference to and statement of the provisions of the act of 1924 was patently due to inadvertence in overlooking the date of the injury as alleged in the complaint. This inadvertence,...