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L.G. SEWELL, JR. v. HYDER ET AL.

July 9, 1956

LAWRENCE G. SEWELL, JR., BY AND THROUGH HIS GUARDIAN AD LITEM, L.G. SEWELL, RESPONDENT,
v.
MARION M. HYDER, EZELL KIMBALL, ONE 1949 FORD SEDAN, SOUTH CAROLINA LICENSE NO. D-2581, AND CANAL INSURANCE COMPANY, A CORPORATION, APPELLANTS.



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

July 9, 1956.

Lawrence G. Sewell, Jr., instituted this action through his guardian ad litem, against Marion M. Hyder, an agent and servant of Ezell Kimball, the owner of the taxi driven by Marion M. Hyder, and Canal Insurance Company, the liability carrier upon the taxis owned by Ezell Kimball, to recover actual damages alleged to have been sustained to respondent's automobile, as a result of a collision between the 1949 Chevrolet coach owned by the respondent, and the 1949 Ford Sedan owned by Ezell Kimball and driven by Marion M. Hyder, which collision took place at the intersection of Pine and Norwood Streets, in the City of Spartanburg, South Carolina, at about 11:30 P.M. on December 24, 1954.

The complaint alleges that respondent's damage was directly and proximately caused by the negligence and carelessness of the appellants in the operation of a taxi, in the following particulars: In failing to yield the right of way to respondent when his automobile had commenced to pass the taxi; in failing to heed warning signal given by respondent; in failing to keep a proper lookout; in abruptly turning without warning or signal appellant's auto in the path of respondent's car; and in failing to apply such brakes as he may have had. The answer of the appellants sets up a general denial, and contributory negligence and willfullness on the part of the respondent.

The case came on for trial before the Judge of the County Court of Spartanburg County and resulted in a verdict in favor of respondent. At appropriate stages of the trial, the appellants moved for a nonsuit, directed verdict and judgment non obstante veredicto. These motions were predicated upon the ground that the only reasonable inference to be drawn from the testimony was that the respondent was guilty of contributory negligence as a matter of law which bars his right of recovery against the appellants. The sole question for determination is whether or not the County Judge erred in refusing to so hold.

Pine Street runs north and south and is a part of United States Highway No. 176 and State Highway No. 9. Norwood Street intersects Pine Street at a right angle on the east side thereof. the vehicles involved in the collision at the intersection of Norwood and Pine Streets were both traveling south on said Pine Street. Glendalyn Avenue intersects Pine Street at right angles one block north of Norwood Street on the east side of Pine. The distance between Glendalyn Avenue and Norwood Street is estimated as being 400 feet, and the width of Pine Street is estimated to be 45 to 50 feet.

The respondent alleges that he gave a signal of his intention to pass the taxi on the left. The appellant Hyder, the driver of the taxi, states that he gave a mechanical signal of his intention to make a left turn at the intersection of Norwood and Pine Streets. The respondent and the driver of the taxi both state that they did not know of the giving of the signal by the other.

The respondent related on direct examination the details of the collision and on cross examination by appellant's counsel, the record discloses that he gave the following testimony:

"Q. As I understand you, Mr. Sewell, there is no question about the fact that you are on the left side of the street when your automobile was less than 100 feet from that intersection, is there? You were on the left side of Pine Street, in the act of passing, when your automobile was less than 100 feet from the intersection? A. Yes, sir.

Q. There is no question about that? A. No, sir.

Q. And there is no question about the fact you were familiar with the street and knew Norwood Street was there? A. No, sir.

Q. There is no question about the fact that the collision happened right at the edge of the intersection? A. No, sir.

Q. And there is no question about the fact you were passing at the time of the impact, or attempting to pass this taxi cab? A. No, sir.

Q. And if you hadn't been passing right at the intersection, the accident never would have happened; couldn't have happened, if you hadn't been ...


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