Whaley v. Ostendorff

• Decision Date: 29 December 1911
• Citation: Whaley v. Ostendorff, 90 S. C. 281, 73 S. E. 186 (S.C. 1911)
• Parties: WHALEY v. OSTENDORFF et al.
• Court: South Carolina Supreme Court

73 S.E. 186

90 S.C. 281

WHALEY v. OSTENDORFF et al.

Supreme Court of South Carolina

December 29, 1911

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 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...