Whaley v. Ostendorff

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtGARY
Citation73 S.E. 186,90 S.C. 281
PartiesWHALEY. v. OSTENDORFF et al.
Decision Date29 December 1911

73 S.E. 186
(90 S.C. 281)

WHALEY.
v.
OSTENDORFF et al.

Supreme Court of South Carolina.

Dec. 29, 1911.


Municipal Corporations (§ 705*)—Regulation of Speed of Vehicles—Negligence. A violation of a city ordinance regulating the speed of automobiles on the public streets is negligence per se, but whether the negligence is actionable depends on whether it was the direct and proximate cause of the injury complained of.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec Dig. § 705;* Highways, Cent. Dig. §§ 460-469.]

Appeal from Common Pleas Circuit Court of Charleston County; R. C. Watts, Judge.

Action by George Thomas Whaley against Eugene F. Ostendorff and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted.

Logan & Grace, for appellant.

Mitchell & Smith, for respondents.

GARY, A. J. This is an action for damages alleged to have been sustained by the plaintiff through the negligence and reckless misconduct of the defendants in running an automobile, whereby the plaintiff was injured while he was upon the crossing of two of the public streets in the city of Charleston. The complaint alleges that at the time the plaintiff was struck by the said automobile it was being driven at a greater rate of speed than 10 miles an hour in violation of an ordinance of the city of Charleston prohibiting the running of automobiles at a greater rate of speed than 10 miles an hour, along the streets of Charleston, and four miles an hour where said streets cross each other. The jury rendered a verdict in favor of the defendants, and the plaintiff appealed.

The exceptions assign error on the part of

[73 S.E. 187]

his honor, the presiding judge, in charging the jury that, "to violate a city ordinance regulating the running of an automobile is in itself prima facie evidence of negligence. It is not conclusive. It is only prima facie." The charge was not in accord with the doctrine announced in Dyson v. Railway, 83 S. C. 354, 65 S. E. 344, Lindler v. Railway, 84 S. C. 536, 66 S. E. 995, and Butler v. Railway, 73 S. E. 185, in which the opinion has just been filed. When evidence of negligence is only prima facie, it is subject to rebuttal, but, when there is negligence per se. it is conclusive of that question. The fact that there is negligence per se does not, however, tend to show that such negligence is actionable. The question whether negligence is actionable depends upon the further question whether...

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15 practice notes
  • Mcbride v. Atl. Coast Line R. Co, (No. 12228).
    • United States
    • United States State Supreme Court of South Carolina
    • June 28, 1927
    ...their operation, was the proximate cause of the injury, presented a question to be determined by the jury." In Whaley v. Ostendorff, 90 S. C. 281, 73 S. E. 186, the action was based upon a violation of a city ordinance regulating the speed of automobiles. The court, commenting upon the......
  • Miller v. Atl. Coast Line R. Co, (No. 12063.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1926
    ...cases of Drawdy v. Railroad Co., 78 S. C. 374, 58 S. E. 980, Chisolm v. Railroad Co., 121 S. C. 394, 114 S. E. 500, Whaley v. Ostendorff, 90 S. C. 281, 73 S. E. 186, and Cirsosky v. Smathers, 128 S. C. 358, 122 S. E. 864, demonstrate. In Whaley v. Ostendorff, supra, in an opinion by the pre......
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...depends upon the further question whether such negligence was the direct and proximate cause of the injury." Whaley v. Ostendorff, 90 S. C. 281, 73 S. E. 186, 187. The question whether the injection into the statute of such a presumption, violated a constitutional guaranty, did not ari......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...128 S. C. 358, 122 S. EL 864, McCown v. Muldrow, 91 S. O. 523, 74 S. E. 386, Ann. Cas. 1914A, 139, and Whaley v. Ostendorff, 90 S. O. 281, 73 S. E. 186, all of which were decided before the McBride Case to the effect that in this state in all cases ex delicto there must be proof of proximat......
  • Request a trial to view additional results
15 cases
  • Mcbride v. Atl. Coast Line R. Co, (No. 12228).
    • United States
    • United States State Supreme Court of South Carolina
    • June 28, 1927
    ...their operation, was the proximate cause of the injury, presented a question to be determined by the jury." In Whaley v. Ostendorff, 90 S. C. 281, 73 S. E. 186, the action was based upon a violation of a city ordinance regulating the speed of automobiles. The court, commenting upon the......
  • Miller v. Atl. Coast Line R. Co, (No. 12063.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1926
    ...cases of Drawdy v. Railroad Co., 78 S. C. 374, 58 S. E. 980, Chisolm v. Railroad Co., 121 S. C. 394, 114 S. E. 500, Whaley v. Ostendorff, 90 S. C. 281, 73 S. E. 186, and Cirsosky v. Smathers, 128 S. C. 358, 122 S. E. 864, demonstrate. In Whaley v. Ostendorff, supra, in an opinion by the pre......
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...depends upon the further question whether such negligence was the direct and proximate cause of the injury." Whaley v. Ostendorff, 90 S. C. 281, 73 S. E. 186, 187. The question whether the injection into the statute of such a presumption, violated a constitutional guaranty, did not ari......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...128 S. C. 358, 122 S. EL 864, McCown v. Muldrow, 91 S. O. 523, 74 S. E. 386, Ann. Cas. 1914A, 139, and Whaley v. Ostendorff, 90 S. O. 281, 73 S. E. 186, all of which were decided before the McBride Case to the effect that in this state in all cases ex delicto there must be proof of proximat......
  • Request a trial to view additional results

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