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March 15, 1957


The opinion of the court was delivered by: G. Duncan Bellinger, Acting Associate Justice.

   March 15, 1957.
This appeal arose out of an automobile collision which occurred on the night of April 13, 1955, in which both automobiles were badly damaged. The plaintiff-appellant's complaint seeks property damages to plaintiff-appellant's automobile.

From the record in the case, it appears that the case was tried before Honorable Malcolm K. Johnson, Judge of the Civil and Criminal Court of Darlington and a jury and resulted in a verdict for the defendant-respondents. For reasons not here material, a new trial was granted. The case again came on for trial before Judge Johnson and a jury.

At the close of the testimony, the plaintiff-appellant made a motion for a judgment in his favor in the sum of $2,795.

The grounds of the motion briefly summarized are that the proximate cause of plaintiff-appellant's damage was the violation by the defendants-respondents of the following statutes, to wit:

"(a) Section 46-384, in failing to sound his horn so that plaintiff's driver would be called upon to yield the right-of-way.

"(b) Section 46-582, in failing to sound horn when necessary for safe operation.

"(c) Section 46-361, in driving at a speed greater than was reasonable and prudent under the circumstances and without regard to the actual and potential hazards then existing.

"(d) Section 46-393, in following another vehicle `more closely than is reasonable and prudent' without `due regard for the speed of such vehicle'."

Judge Johnson overruled plaintiff-appellant's motion for a directed verdict and submitted the case to the jury. Again the jury found for the defendants-respondents.

Thereafter the plaintiff-appellant moved for judgment notwithstanding the verdict or in the alternative for a new trial upon the same grounds as his motion for a directed verdict. That motion was overruled.

Plaintiff-appellant then appealed to the Court of Common Pleas for Darlington County upon the same grounds upon which his motion for a directed verdict was based. The appeal came on to be heard before the Honorable J. Woodrow Lewis, Resident Judge of the Fourth Judicial Circuit. After argument of counsel, Judge Lewis, in a well-considered order which will be reported herewith, ordered that the appeal be dismissed. The case is now before this Court on appeal from the order of Judge Lewis.

The evidence adduced in the Civil and Criminal Court of Darlington in the trial of the case is not produced nor summarized in the transcript of record, nor in the briefs of plaintiff-appellant or that of defendants-respondents. However, in the order of Judge Lewis, it is to be gathered that the following is the evidence produced at the trial:

That the defendants-respondents overtook and passed the automobile of the plaintiff-appellant while both were proceeding in the same direction; that the defendants-respondents' automobile was operating within the maximum permissible speed limit, which evidence is not contradicted by any other evidence; that the road was straight and visibility was not obstructed. There was no positive evidence that the defendants-respondents violated the speed law; that there was no intersection, hill crest, bridge or other road condition that would deny the defendants-respondents the right to pass the automobile of the plaintiff-appellant; that the plaintiff-appellant's automobile was in the left-hand lane of the road, driving at a moderate speed; that no signal indicating a turn was given by the operator of the plaintiff-appellant's automobile; that the defendant-respondent Charles Woods blinked his lights to indicate his presence and proceeded to pass the plaintiff-appellant's automobile in the left-hand lane as provided by law; that an instant before the impact, the plaintiff-appellant's automobile was turned suddenly in the path of defendants-respondents' automobile.

To the Order of Judge Lewis affirming the judgment of the lower Court, the plaintiff-appellant takes numerous exceptions, which it is not necessary to set out in detail for all of the exceptions raised are embodied in the three questions submitted by the plaintiff-appellant and concurred in by the ...

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