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WYNN v. ROOD ET AL.

January 31, 1956

ROBERT B. WYNN, RESPONDENT,
v.
H. RAY ROOD AND BERNARD HUNSINGER, APPELLANTS.



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

January 31, 1956.

The first question presented is whether the trial Judge erred in refusing appellants' motions for a nonsuit and a directed verdict upon the ground that respondent was guilty of contributory negligence as a matter of law.

Highway No. 250 is a through highway and at the place of the collision runs approximately north and south. The surface treated or traveled portion of the road is twenty feet wide. It is intersected at right angles by No. 123 By-Pass, which is principally used by motorists for the purpose of entering Highway No. 250. The truck, loaded with 30,000 lbs of potatoes, was driven in a westerly direction along the by-pass. Before entering the intersection, the driver stopped and then proceeded to make a left turn so as to go south along Highway No. 250. Before entirely completing the turn, he stopped for the purpose of asking directions. When he stopped, the truck, headed south, was within the southbound lane of Highway No. 250 but the rear of the trailer extended five feet into the northbound lane of said highway. In other words, the rear of the trailer occupied about half of the traveled portion of the northbound lane. After the truck and trailer had been standing in this position for less than a minute, the automobile of respondent, which was being driven along Highway No. 250 in a northerly direction, collided with the left rear of the trailer.

The night was dark. Respondent lived on Highway No. 250 and was returning home. Although he knew the speed limit in this area was 35 miles an hour, he admitted that he was traveling at approximately 40 miles an hour. He testified that in approaching this intersection, he came around a curve and first observed the lights of the tractor when he was 300 feet away. He then dimmed his lights and when within about 50 feet of the tractor noticed that the rear of the trailer was protruding into his side of the road. He immediately applied his brakes but before he could stop, the left front of his car collided with the left rear of the trailer. The marks on the pavement showed that he skidded a distance of 39 feet. His car was damaged beyond repair and he sustained painful personal injuries.

The accident was witnessed by two patrolmen who were sitting in highway cars near the intersection. One of them testified in part as follows:

"Q. Was his (respondent's) speed excessive? A. His speed wasn't excessive for the amount of traffic and road conditions, wasn't anything to attract your attention.

"Q. At the speed he was traveling, and with the trailer like it was could he have seen it before he was on the trailer? A. In my opinion, he couldn't."

Appellants raise no question as to negligence on the part of the driver of the truck. They seek to escape liability upon the ground that respondent was guilty of contributory negligence as a matter of law. This contention is largely based upon respondent's admission that he was traveling 40 miles per hour in a 35 mile speed zone. But we think the question of whether any negligence in this respect contributed as a proximate cause of respondent's injury and damage was properly submitted to the jury. Coney v. Cox, 165 S.C. 26, 162 S.E. 596, and cases therein cited. "It is firmly established in this jurisdiction that if the inferences properly deducible from the evidence are doubtful, or if they tend to show both parties guilty of negligence or wilfulness, and there may be a fair difference of opinion as to whose act produced the injury complained of as a direct and proximate cause, then the question must be submitted to the jury." Harrison v. Atlantic Coast Line R. Co., 196 S.C. 259, 13 S.E.2d 137, 141.

There is also some suggestion in the argument of counsel for appellants that respondent could have avoided the collision by driving to the right off the surface treated portion of the highway. Respondent testified that this could not be safely done on account of some posts standing to the right of the highway. Be that as it may, it was for the jury to determine whether in the sudden emergency which confronted him, respondent exercised ordinary care and judgment.

It is next contended that appellants were seriously prejudiced by the conduct of respondent's counsel in propounding improper questions to the highway patrolman and appellant Bernard Hunsinger, the driver of the truck, and that the Court should have ordered a mistrial.

After the highway patrolman, an eyewitness, had related on direct examination by respondent's counsel the details of the accident, the following occurred:

"Q. Did you make any charge against either of the parties?

"By Mr. Mann: My friend knows that is objectionable, that has been held time and again; and I move ...


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