McGee v. . Warren

Beogden, J. The Supreme Court of South Carolina considered the question involved in this appeal in the case of Lipford v. General Road and Drainage Construction Co., 110 S. E., 405. In that case a truck was left standing in the night time without lights. The plaintiff ran into the rear of the standing truck and his automobile was considerably damaged. The defendant moved for a directed verdict upon the ground that there was no proof of negligence and undisputed proof of negligence of plaintiff. However, the court held that the testimony was susceptible of more than one inference as to negligence, and hence an issue of fact was raised which should have been submitted- to a jury. Viewing the question involved, in the light of the decisions of this jurisdiction, the question was properly submitted to the jury. The plaintiff was an invited guest or gratuitous passenger at the time of the collision. There was no evidence that he was engaged in a joint enterprise with the driver or that he had any control whatever of the car or that he failed to perform any duty imposed by law upon him as a guest or gratuitous passenger. ■ This aspect of liability was discussed in the case of Earwood v. R. R., 192 N. C., 27, 133 S. E., 180, where it was held that ordinarily the negligence of a driver will not be imputed to a *675 guest or occupant of an automobile “unless sucb guest or occupant is tbe owner of tbe car or bas some kind of control of tbe driver. Of course if tbe negligence of tbe driver is the sole, only, proximate cause of tbe injury, tbe injured party could not recover. This rule is not based upon tbe idea of contributory negligence on tbe part of tbe injured party, but rather upon tbe idea that tbe party causing tbe injury was not guilty of any negligence, which was tbe proximate cause thereof.” In tbe case at bar there was ample evidence tending to show negligence upon tbe part of defendant, and also that there was a causal connection between tbe negligence of defendant and tbe injury sustained by tbe plaintiff. Even if it be assumed that tbe driver of tbe car was negligent in failing to keep a proper lookout, in no event could sucb negligence be imputed to tbe plaintiff upon tbe facts and circumstances disclosed by tbe record. Moreover, it bas been held: “As to whether tbe motorist at a given time was keeping a reasonably careful lookout to avoid danger is ordinarily an issue of fact,” etc. Williams v. Exp. Lines, ante, 193. In truth, tbe Williams case, supra, is determinative of tbe principles of liability involved in this appeal. No error.