Williams v. Kalutz

• Decision Date: 12 December 1960
• Docket Number: No. 17724,17724
• Citation: Williams v. Kalutz, 117 S.E.2d 591, 237 S.C. 398 (S.C. 1960)
• Court: South Carolina Supreme Court
• Parties: J. D. WILLIAMS, Appellant, v. Eugene KALUTZ, Respondent.

Page 591

117 S.E.2d 591

237 S.C. 398

J. D. WILLIAMS, Appellant, v. Eugene KALUTZ, Respondent.

No. 17724.

Supreme Court of South Carolina.

Dec. 12, 1960.

McKay, McKay, Black & Walker, Columbia, for appellant.

Nelson, Mullins & Grier, Columbia, for respondent.

OXNER, Justice.

This is an action to recover damages for personal injuries alleged to have been sustained by a pedestrian from the impact of an automobile while crossing a street intersection. Trial by jury resulted in a verdict for defendant. From the judgment entered thereon, the plaintiff has appealed. The major question presented is whether the Court erred in refusing to peremptorily instruct the jury that the undisputed evidence showed liability on the part of defendant, leaving open only the question of damages. The trial Judge submitted to the jury both the issue of negligence on the part of defendant and that of contributory negligence on the part of the plaintiff.

The accident occurred on October 21, 1957, about two o'clock on a clear afternoon, at the intersection of Hampton and Assembly Streets in the City of Columbia. Assembly Street, which is about 100 feet wide, runs north and south. Except at the intersections, there is a cement 'island' running through the middle of the street which separates north and southbound traffic. There are five lanes on each side between the curb and the median. The lanes next to the curbing and the median are used for parking, leaving three traffic lanes between the two parking lanes. Hampton Street runs east and west. The testimony does not show its width but it is not as wide as Assembly Street. There are traffic lights at this intersection.

Plaintiff, appellant here, is a man in his early fifties. He was formerly a railroad postal clerk but became disabled as a result of injuries sustained in several train accidents. His locomotion was impaired. On the day in question he walked to the north-eastern corner of the intersection and after waiting for the light to change to green proceeded westerly on a marked crosswalk with the intention of getting his car which was parked on the other side of Assembly Street. Defendant, respondent here, was traveling east on Hampton Street. When he reached the southwest corner of the intersection, the traffic light was green. He proceeded across the western side of Assembly Street, intending to make a left turn and go north on Assembly. Before completing his turn, he had to stop for cars going westerly across Assembly Street. As soon as the light changed to green so as to give the Assembly Street traffic the right of way, he started his car. When he had proceeded only a very short distance, plaintiff came in contact with his right front fender. At this time plaintiff was in the crosswalk and had reached a point about two-thirds the distance across the eastern side of Assembly Street.

Plaintiff testified that when he reached the third traffic lane, he saw a car 'cutting the corner' at a 'terrific' speed, that to avoid being hit he 'stepped back', and 'I put out my hands and hit my wrist on his right front fender, and it knocked me up in the air.' He says he 'was probably over halfway in the path of the car when I saw it coming', but declined to estimate how far away defendant's car was at that time. He admits he did not fall but says his 'right leg gradually gave away' and that he sat down on the street at the point of the impact. According to him, the defendant's car traveled about two car lengths after the accident.

Plaintiff's testimony is contradicted to some extent by one of his own witnesses who testified that defendant's car was not going fast and only traveled about five feet after the accident.

Defendant testified that he entered the intersection from Hampton Street on a green light; that there was only the normal amount of traffic; that as he crossed the western side of Assembly Street, he gave a hand signal of intention to make a left turn; that he stopped near the middle of the street to permit traffic going west on Hampton Street to pass; that after the light changed he turned left to go north in the traffic lane on Assembly Street nearest the median, traveling only five or ten miles an hour; that as he made this turn, he 'heard a noise against the side of his automobile', immediately looked back and saw the plaintiff standing in the street; and that he stopped within four or five feet. He says he then moved his car out of the traffic and offered assistance to plaintiff. He admitted that he never saw plaintiff prior to the accident and said the dust marks on his car indicated that the impact occurred on 'the right front fender about halfway back.' He denied that his automobile struck the plaintiff, stating, 'I wouldn't say my automobile struck Mr. Williams as much as it would be that Mr. Williams put our his hands and hit my automobile.' It seems to be conceded that the automobile never touched plaintiff's body.

Plaintiff claims that his preexisting physical condition was considerably aggravated by the impact. There is other testimony to the effect that his injury, if any, was only trivial.

It must be conceded that plaintiff had the right of way. Section 46-306...