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January 24, 1956


The opinion of the court was delivered by: G. Badger Baker, Acting Associate Justice.

January 24, 1956.

At the conclusion of appellant's testimony the trial Judge, upon motion of respondent, directed an involuntary nonsuit upon the ground that appellant's damages were brought about by his driver's own negligence and contributory negligence, but declined to sustain respondent's contention "That plaintiff's damage did not result from any defect in the street or from the mismanagement of anything under Defendant's control being used in connection with the repairs to any street." The controlling section of the Code is 47-70.

Appellant's exceptions present the question whether the trial Judge erred in ruling as a matter of law the only conclusion determinable as a matter of law was that appellant's damages were brought about by his driver's negligence and contributory negligence.

Respondent has excepted to the lower Court's refusal to also predicate the nonsuit upon its last ground which is quoted in a preceding paragraph.

The transcript does not contain the lower Court's reasoning in ordering the nonsuit, but apparently the overhanging limb was adjudicated a defect, but of such a nature or the danger so obvious that a motor vehicle operator, in the exercise of ordinary prudence would not have traveled thereunder.

The tree is located on the northern side of Arlington Street, on the right in the direction in which appellant's truck was traveling, with the base of its trunk, 52 inches in circumference, located 6 1/2 inches from the outer edge of the concrete curb. The tree leans toward the street and there is a distance of 56 inches from the outer edge of the curb to the nearest flush point of the leaning trunk. The limb, which came in contact with the top of the truck, extends over the street at a 45-degree angle and is 24 inches in diameter. The point of contact on this limb is approximately 9 feet, 2 inches above the street, which is paved. There is a scarred area on this limb in length about 24 inches, the farthest point of which is approximately 40 inches from the curb and the nearest 16 inches. Appellant's driver says his right wheels were about 3 feet from the northern curb at the time of impact.

The truck was, or is, of panel or closed body type, 7 feet, 3 1/2 inches in width and about 9 feet, 9 inches in height. Arlington Street is 24 1/2 feet in width, from curb to curb, with concrete gutters which are practically level with the street. The driver, Robert Hughes, was approaching the intersection of Arlington and Anderson Streets and the accident occurred about 150 feet therefrom. The intersection is regulated by electrical traffic signals. Within a block of the intersection, on Anderson Street, is located a public school.

The driver, at this time, lived on Arlington Street, in the same block in which the collision occurred, and some five or six houses therefrom. He testified that although he was familiar with the general area, he had not had any particular reason or occasion to observe the tree or its overhanging limb prior to the accident.

Hughes was driving about 15 to 20 miles per hour, traveling in second gear since his speed was too low for high gear. The truck had immediately prior thereto passed an automobile parked on the right side of the street and was progressing past an automobile parked on the left side of the street when the limb was struck. The driver testified that he came over to the gutter area in order to maintain an adequate clearance area between his truck and the car parked on the south, did not observe the overhanging limb, or its danger, because of the foliage on the trees, and his attention was focused upon the roadway ahead, the intersection, watching for doors opening upon cars and the possible presence of children.

First to consider is respondent's sustaining ground. If the overhanging limb is not a defect, appellant would not have a cause of action against the municipality. The cases of Inabinett v. State Highway Department, 196 S.C. 117, 12 S.E.2d 848; Terrell v. City of Orangeburg, 176 S.C. 518, 180 S.E. 670, 672; and Heath v. Town of Darlington, first appeal reported in 171 S.C. 196, 171 S.E. 916, second appeal, 175 S.C. 27, 177 S.E. 894, are adverse to respondent's exception. The Terrell case, supra, quoting from Heath v. Town of Darlington, supra, second appeal, contains this language: "`the rule of liability of a city or municipality for injury resulting from conditions in the streets is not confined to cases of obstructions upon the surface of the street, for overhead signs or other objects may be as dangerous as an obstruction upon the surface, because they are not likely to be observed and avoided'". The lower Court was not in error in refusing to grant a nonsuit on the basis that the overhanging limb was not a defect within the contemplation of Section 47-70, Code of Laws of 1952.

Under the testimony can it be said, as a matter of law, that the only reasonable inference to be drawn from the evidence is that appellant's driver was negligent or negligently contributed to the cause of the collision?

The answer to this question is whether the limb was likely to be observed and avoided. The truck was within lawful dimensions, its height below the maximum. There was no statutory violation in its traveling operation. Its driver, although he lived in the same block, for about two months, possessed a general knowledge of conditions, but there is no evidence that he was familiar, or should have been familiar, with any specific danger. It cannot be said as a matter of law this limb overhung in such a manner as to be a patent, open and obvious obstacle, but on the contrary, from the evidence, its peril was latent. The driver's attention was directed to traffic hazards and possible hazards. Negligence or contributory negligence is not to be found or based upon the circumstance that he allowed more clearance between the truck and parked vehicle than necessary. It may be that the overhanging limb could have been observed and the collision prevented, but this presented an issue for jury determination.

The case of Coffee v. Anderson County, 224 S.C. 477, 80 S.E.2d 51, 54, while not similar in fact, is sufficiently similar in principle as to be controlling herein. The plaintiff Coffee ran into a hole in a street or highway, the accident occurring in the nighttime. He testified he lived near the defective place in the road, knew of the defective condition, and usually left his home along another route. A verdict was rendered in his behalf, and the appeal taken to this Court principally on the proposition he was guilty of contributory negligence and the lower Court ...

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