Flowers v. South Carolina State Highway Dept.

Mr. Associate Justice Oxner delivered the majority Opinion of the Court. I am not persuaded that the trial Judge erred in submitting the issue of contributory negligence to the jury. There was no motion for a nonsuit or directed verdiet on the ground that there was no evidence tending to' show negligence on the part of appellant. But if such motion had been made, I do not think it could have been granted. Under Section 1623 (38) of the Code of 1942, the driver of appellant’s truck was required to park it so that all wheels on the right side would be within 18 inches of the curb. According to respondent’s testimony, the truck *456 was parked at an angle of 35 to 40 degrees, with the rear of the truck extending within several feet of the middle of the street. Respondent’s testimony as to the manner in which this truck was parkd is corroborated to some extent by one of appellant’s witnesses, a policeman of the town of Darling-ton, who arrived at the scene a few minutes after the accident He testified in part as follows: “Q. And Barney,- djd you testify that the right front wheel of that truck was up on the curb when you got there? A. Yes. “Q. Now, was that at an angle to some extent leading from the curb? A. Yes, just a little angle. “Q. So, wherever the truck was parked before, it was hit by the automobile and before it went into the position where you saw it, it was still further out in the highway, it had to be if it went on into the curb? A. Yes. “Q. Now, the front wheel was how far on the curb? A. It was just sitting up on the curb. “Q. How was the diameter of the wheel on the truck, approximately? A. From 24 to 28 inches. “Q. Then, before it went up on the curb that is 24 to 28 inches further out in the street the back end of the truck had to be? A. Yes. “Q. So, the truck eight or nine feet and 24 to 28 inches, which is about two or two- and a half more, that would be ten or eleven feet out, would it not? The back when it was down on the curb, the wheel had to go that far to go on.the curb? A. Yes, but I don’t know just how far it was from the curb before it went up. “Q. But, however far it went on the curb, it had to come from some distance back? A. Yes. “Q. So, it was that much further back in the street,’ was it? A. Yes.” (The driver of the truck stated that he left the truck in gear but the brakes were not on.) The question for determination, therefore, is whether respondent has shown that there was no negligence on her part *457 contributing as a proximate cause of her injuries. She and her son, the driver of the car, both of whom were on the front seat, testified that they did not see the truck before the collision. Can it be said as a matter of law that in the exercise of ordinary care they should have seen this truck in time to have avoided the collision, or can more than one reasonable inference thereabout be drawn from the testimony, requiring submission of this issue to the jury? The night was dark. The truck was parked at a distance of approximately 65 feet from a street intersection where there was a street light. The driver of respondent’s car testified that the street light was “up in a big thick tree”. The following appears in the testimony of Mr. Funderburk, appellant’s maintenance superintendent: “Q. And the overhanging limbs of this tree almost come out and touch this light, do they not? A. Yes, I believe it does.” There were a number of trees along Pearl Street. Respondent’s daughter testified that “there was a big oak tree there and it is still there, the limbs hung down and it had the truck completely hidden.” She further testified that “it (the truck) was all covered over and the light was way back of us and the light put a reflection where you could not see under that tree.” The driver of respondent’s car further testified, “you can’t see something else that has no light on it in the dark shadow of a tree.” It further appears that Pearl Street is a black “asphalt-treated street” and that the color of the truck was also black. In the rear of the truck parked in question there was a spreader which extended across the truck and protruded beyond the body about one foot on each side. Ap■pellant’s construction superintendent testified as follows: “The spreader sticks out approximately one foot past the edge of the body. It seems as if this car, the way it looked on the car on the windshield the car turned out from behind and hit that spreader.” Just before the collision respondent was meeting another car which was “about a block and a half away.” Pearl Street constitutes a part of one of the *458 main arteries of travel between Darlington and Hartsville upon which there is very heavy traffic. The driver of respondent’s car, although required to exercise ordinary care in keeping a proper lookout, had a right to assume, in the absence of any circumstances which would reasonably give notice to the contrary, that the street would not be partly blocked with vehicles in violation of the statutory law of the State. There existed, according to- respondent’s testimony, an unusual and unexpected hazard in the street.- As stated in Oakman v. Ogilvie, 185 S. C., 118, 193 S. E., 920, 923, “Every traveler on tlie highway, exercising due care himself, in the absence of any circumstances which reasonably should put him on notice to the contrary, is entitled to assume, and to act upon the assumption, that others using it in common with him will exercise reasonable care.” To the same general effect see Lowie v. Dixie Stores, Inc., 172 S. C., 468, 174 S. E., 394. Are we able to say, as a matter of law, that the explanation of the driver of respondent’s car was untrue or impossible? If not, then it was for the jury to determine its truth and probability. I think that under all the circumstances the issue of negligence on the part of the respondent and the driver of her car was properly submitted to the jury. The color of the truck blended with that of the street. There was testimony from which the jury could reasonably infer that the effect of the illumination from the street light was partially destroyed by the limbs o-f the trees; that the limbs of the trees further obstructed the view of the parked truck; that the spreader extending beyond the width of the truck added to the hazard; and that while the lights of the approaching car did not blind the driver of respondent’s car, his attention just before the collision was diverted by the car that he was meeting. Although there is no statutory requirement that trucks parked on the street in question should display a red light on the rear, and without in *459 timating any opinion as to whether under the peculiar circumstances presented ordinary care at common law would require the display of such lights, I think the absence of such rear lights was a circumstance to be considered by the jury in determining whether there was negligence on the part of respondent. Although the driver of the truck in question was positive in his testimony that such rear lights were burning, this testimony is contradicted by that of the police officer who testified for appellant. The requirement in this State that motor vehicles parked on the road at night shall under certain circumstances display a red light on the rear is a legislative recognition of the inherent danger of vehicles being parked along unlighted streets or roads without rear lights. While it is true that Pearl Street was not an unlighted street, yet the jury could have concluded that the trees so obscured the light as to almost have the effect of an unlighted street at this point. Although the driver of respondent’s car may have been negligent in diving in or near the middle of the street, under the case of Young v. City of Camden, 187 S. C., 414, 198 S. E., 45, 49, I do not think it can be said as a matter of law that such contributed as a proximate cause of the collision. That case involved an action by a motorist against the City of Camden for personal injuries sustained when his automobile collided at night with a dome-shaped traffic marker about ten inches high and about a foot and a half wide at its base, which was set in the center of a street intersection. The lower Court granted a nonsuit upon the ground that the plaintiff was guilty of contributory negligence, resting its conclusion largely upon the fact that the plaintiff violated an ordinance of the City of Camden which required that one driving an automobile must drive to the right of the center of the street. In disposing of the contention of contributory negligence upon his ground, the Court, speaking through Mr. Justice Fishburne, said: “The question, whether the appellant’s violation of the city ordinance, if he violated it, was a *460 proximate contributing cause of the injury in question, depends, therefore, upon the question whether the appellant in driving on the left of the center, if he did so, ought reasonably to have anticipated, as a natural and probable consequence of his negligence in that respect, that his automobile would collide with the silent policeman. Doubtless, the appellant might reasonably have anticipated that, as a natural consequence of his act, he or his car might be injured by others legitimately using that side of the street; but we think it cannt be held as a matter of law, that a reasonably prudent man, situated as the plaintiff was just before the accident, would have anticipated that as a natural consequence of his negligent act, he would collide with a silent policeman, the presence and location of which was unknown to him, and which was unlighted, and hardly distinguishable from the pavement itself.” The case of Lipford v. General Road & Drainage Construction Co., 118 S. C., 358, 110 S. E., 405, to some extent sustains the conclusion which I have reached. There the plaintiff’s automobile collided at night with the rear of the defendant’s truck loaded with a concrete hopper. The truck was parked at an angle without lights on the edge of the concrete road. The truck and hopper were of the same color as the concrete and the plaintiff did not observe the truck until the collision occurred. Defendant contended that there was no evidence of negligence on its part and that the undisputed testimony showed that the accident was caused by the negligence of plaintiff. The Court held that the testimony was susceptible to more than one reasonable inference and that it was proper to submit these issues to the jury. Also, see Ackerman v. One Mack Truck et al., 191 S. C., 74, 3 S. E. (2d), 684. The foregoing conclusion is also supported in principle by the following cases from other jurisdictions: Murphy v. Hawthorne, 117 Or., 319, 244 P., 79, 44 A. L. R., 1397; Morehouse v. Everett, 141 Wash., 399, 252 P., 157, 58 A. *461 L. R., 1482; Tierney v. Riggs, 141 Wash., 437, 252 P., 163; Central Surety & Ins. Corp. v. Murphy, 10 Cir., 103 F. (2d), 117; Wicker et al. v. North States Const. Co., Inc., 183 Minn., 79, 235 N. W., 630, 632. In the last-mentioned case the Court made the following pertinent observation. “If human conduct was perfect, we would of course have higher standards and fewer accidents, but the trouble is that the law makes some allowances for human frailties and hence uses the conduct of an ordinarily prudent person as a-standard; and just what an ordinarily prudent person would do under the circumstances here involved must be solved by the composite judgment of the jury.” I am not unmindful of the fact that the ordinary rule to the effect that the burden of proving contributory negligence is upon the defendant does not apply in this case and that under the statute authorizing suit against appellant, the burden rests upon the plaintiff to show that her own negligence did not contribute as a proximate cause of her injury. However, the answer to the question under consideration does not depend so much upon the burden of proof, but whether more than one reasonable inference can be drawn from the facts proven. In passing on the testimony, under the well-settled rule, I have considered it in the light most favorable to respondent. Much of the testimony which I have stated is flatly contradicted by strong - evidence offered by appellant. In fact, the record is full of contradictions and some confusion, but this Court is not empowered to pass upon the credibility of the witnesses. I am unable to' agree with so much of the opinion of Mr. Chief Justice Baker as holds that the testimony is insufficient to show that the respondent did not negligently contribute to her injury as a proximate cause thereof. I think the lower Court was correct in refusing the motions for nonsuit and directed verdict on all grounds. *462 The conclusion which I have reached makes it necessary to consider certain other exceptions which have not been discussed. It is contended that the trial Judge erred in instructing the jury as to the elements of damage which the jury could consider and also erred in stating the rule as to future or prospective damages. I think the exceptions relating to the charge should be overruled under the cases of Robinson v. Town of St. Matthews, 89 S. C., 30, 71 S. E., 234; Shramek v. Walker, 152 S. C., 88, 149 S. E., 331; Ford v. A. A. A. Highway Express, 204 S. C., 433, 29 S. E. (2d), 760. It is further contended that the trial Judge erred in not granting a motion for a new trial on the ground that the amount of the verdict was excessive. I think this exception is without merit. This opinion, having been concurred in by a majority of the Court, it is the judgment of this Court that all exceptions be overruled and the judgment of the lower Court affirmed. Messrs. Associate Justices Fisi-iburne, Stukes and Taylor concur.