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FIELD v. GREGORY ET AL.

August 7, 1956

BETTY FIELD, RESPONDENT,
v.
FRED L. GREGORY, B. FRED GREGORY AND ROBERT B. GREGORY, D/B/A GREGORY'S LAUNDRY AND CLEANERS, AND WILLIAM L. BINGHAM, APPELLANTS.



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

August 7, 1956.

This is an action to recover damages to person and property, resulting from a collision between respondent's automobile and a truck owned by Gregory's Laundry and Cleaners, and operated by William L. Bingham, an employee thereof, who are appellants. The collision occurred at about 5 o'clock p. m. on November 5, 1953, at the intersection of Frances and Beatrice Streets, near the City of Greenville, S.C. The trial resulted in a verdict for the respondent for actual damages.

The complaint alleges that injury and damage to the person and property of the respondent was directly and proximately caused by the willful, wanton and reckless operation of the appellant's truck. The allegations of the complaint allege that the truck was being driven at a rate of speed excessive under the circumstances; the driver did not have the truck under proper control; failed to keep a proper lookout and to yield the right of way as required by the laws of the State of South Carolina.

The answer of the appellants contained a general denial and also alleged as a defense that respondent's injury and damage, if any, was caused and occasioned by the sole negligent, reckless, willful and wanton acts of the respondent; and also that the respondent was guilty of contributory negligence and willfullness, and that her injury and damage resulted because she drove her automobile without keeping a proper lookout; and without having same under proper control and at a greater rate of speed than was reasonable and safe under existing conditions; and in failing to yield the right of way to the appellants when their truck had entered the intersection from respondent's right, in violation of the statutory law of the State of South Carolina.

At appropriate stages of the trial, the appellants moved for a nonsuit, directed verdict and judgment non obstante veredicto, and alternatively, for a new trial.

The first question for determination 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.

The collision between the automobile of the respondent and the truck of the appellants occurred at the intersection of two secondary surface treated streets, each about 15 feet in width. Neither street had any stop sign thereon. The respondent was traveling south on Beatrice Street and the appellants' truck was traveling East on Frances Street. It is a fact that appellants' truck was aproaching the intersection from respondent's right. The two vehicles came together at approximately the same point on each other, that is, at the head light to the right and left side of respondent's automobile and appellants' truck, respectively. The right front of respondent's automobile was damaged and the left front of appellants' truck was damaged. After the impact, the vehicles ended up diagonally across from the intersection. The respondent testified that as she approached the intersection of the two streets, that she slowed down and looked to her right and to her left and did not see any vehicles approaching. She then proceeded to cross the intersection, and that while she was in such intersection the appellants' truck hit her. She states in her testimony that she saw the appellants' truck at varying distances but the greatest distance being 15 feet from her. She does not estimate the speed of appellants' truck except to say that "he was going at a high rate of speed", and "I know he was going fast."

The driver of appellants' truck, on cross examination, stated that he was 40 or perhaps 50 feet back on Beatrice Street when he first saw the car of respondent, and that she was on Frances Street 60 or 70 feet from the intersection. The driver also admitted that he probably slammed on his brakes as hard as he could.

The appellants raise no question as to the negligence on the part of the driver of the truck. As a matter of fact, counsel for the appellants conceded during the oral argument, that the driver of the truck was negligent. Appellants seek to escape liability upon the ground that the respondent was guilty of contributory negligence as a matter of law. The appellants assert that the respondent was guilty of contributory negligence as a matter of law, in not seeing appellants' truck, in not making any effort to avoid the collision and in failing to yield the right of way to appellants' truck entering the intersection from her right at approximately the same time. It is asserted that if respondent had exercised due care in looking as she approached the intersection, she could have easily observed the truck approaching from her right. It is asserted that her visibility to the right was unobstructed and if she had looked in that direction she could have easily observed the approaching of the truck and, therefore, the respondent should have yielded the right of way to such approaching truck.

The appellants contend that the respondent was guilty of contributory negligence as a matter of law because she violated Section 46-421, of the 1952 Code of Laws of South Carolina, which provides:

"The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. When two vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right."

This Court has stated in Chapman v. Associated Transport, Inc., 218 S.C. 554, 63 S.E.2d 465, 469, the following:

"The violation of an applicable statute is negligence per se, and whether or not such breach contributed as a proximate cause to plaintiff's injury is ordinarily a question for the jury. Eickhoff v. Beard-Laney, Inc., 199 S.C. 500, 20 S.E.2d 153, 141 A.L.R. 1010; Lawrence v. Southern Ry.-Carolina Division, 169 S.C. 1, ...


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