Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

JOHNSON v. GRIFFIN

January 12, 1956

JIM JOHNSON, ADMR., APPELLANT,
v.
FRANK GRIFFIN, RESPONDENT.



The opinion of the court was delivered by: Oxner, Justice.

January 12, 1956.

This is an action to recover damages for the alleged wrongful death of James Johnson. The administrator also brought an action to recover damages for pain and suffering endured by the deceased between the time of his injury and death. The two actions were tried together. At the close of the plaintiff's testimony, the trial Judge granted a nonsuit in each case. This appeal followed.

Briefly stated, it was alleged in the complaint that during the late afternoon of March 13, 1954, the deceased, a Negro 28 years of age, while riding in the cab of a truck owned and operated by defendant, fell or was thrown from the truck, after which the wheels ran over him, causing injuries from which he died on May 25, 1954. The specifications of alleged negligence, recklessness and wilfulness were (1) that the right door was worn, broken and would not fasten securely; (2) that the defendant failed to warn the deceased of the unsafe and defective condition of the door; (3) that defendant made a left turn at an excessive rate of speed; and (4) that he failed to keep said truck under proper control.

Ordinarily in a case of this kind statements by a deceased detailing the circumstances of his injury are incompetent. Griffin v. Forrester, 80 S.C. 220. 61 S.E. 389; Dantzler v. Southern Railway Co., 152 S.C. 287, 149 S.E. 750; Correll v. City of Spartanburg, 169 S.C. 403, 169 S.E. 84. However, the declarations here were apparently admitted on the theory that they were made in the presence of defendant.

The record does not disclose why deceased was riding in the truck. We are, therefore, unable to determine what duty, if any, defendant owed him. During the argument on the motion for a nonsuit, plaintiff's counsel stated: "Our position is that he (the deceased) was a guest." If so, under the guest statute, Section 46-801 of the 1952 Code, the only duty defendant owed the deceased was not to injure him wilfully or by conduct in reckless disregard of his rights.

Brown v. Hill, S.C. 88 S.E.2d 838. The record negatives any theory of master-servant relationship between the parties, for the father of deceased testified that prior to the accident his son was engaged in hauling pulpwood for one Willie Brown.

There is certainly no testimony supporting either the allegation that the truck was being operated at an excessive rate of speed or the complaint that the defendant did not have the truck under proper control. The only other negligence alleged is that the door was unsafe and the defendant failed to warn the deceased of its defective condition. If, as counsel for plaintiff contends, the door would not fasten securely and had to be tied with a wire to keep it from opening, this would not furnish a basis of recovery for such a condition would have been obvious to any passenger riding in the cab of the truck. In Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, Volume 4, Section 2515, page 721, it is stated: "So, if a guest, with knowledge of the defective condition of the car and appreciation of the hazards involved, voluntarily assents to ride therein, he will be precluded from recovery for injuries in an accident resulting from the defects of which he has then been cognizant * * *". It is elementary that a person has a duty to use ordinary care to avoid an injury that might otherwise result from the negligence of another.

The foregoing views are based on the assumption that the fall of the deceased from the truck was due to a defective door. But the only evidence as to the condition of the door was the fact that shortly after the accident it was tied to the post of the steering wheel. No one testified that the door would not fasten properly. Nor do we know deceased's position or what he was doing just before he fell. In short, the cause of his injury remains largely speculative and uncertain.

It is true that where the injured party is dead and the only person in a position to explain the circumstances is the defendant, the Court in passing on a motion for a nonsuit will take a very liberal view of the testimony, Brock v. Carolina Scenic Stages, 219 S.C. 360, 65 S.E.2d 468, yet there must be some circumstances, absent here, reasonably warranting an inference of liability.

The order of nonsuit is affirmed.

STUKES, TAYLOR and LEGGE, JJ., and G. BADGER BAKER, Acting ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.