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CRITZER v. KERLIN

June 5, 1957

MARY ELIZABETH CRITZER, A MINOR, BY HER GUARDIAN AD LITEM, MATTIE CRITZER, RESPONDENT,
v.
THOMAS W. KERLIN, JR., AND ONE 1948 CHEVROLET SEDAN, BEARING S.C. LICENSE NO. D-172-735, APPELLANTS.



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

June 5, 1957.

This action was instituted by Mary Elizabeth Critzer, a minor, approximately three years of age, by and through her guardian ad litem, against Thomas W. Kerlin, Jr., the owner and driver of the automobile involved, to recover damages, actual and punitive, for injuries sustained as a result of a collision between the automobile operated by appellant and the minor respondent. The collision occurred on the afternoon of March 25, 1956 on Superior Street, in the City of Columbia, South Carolina. The trial resulted in a verdict for the respondent for actual damages.

At appropriate stages of the trial, the appellant moved for a nonsuit, directed verdict and judgment non obstante veredicto. These motions were refused by the trial Judge. The motions were upon the ground that the only reasonable inference to be drawn from the testimony was that the appellant was not guilty of any actionable negligence. This appeal raises the single question of whether the evidence adduced upon the trial of the case was sufficient to require the issue as to the negligence of the appellant to be submitted to the jury.

The complaint alleges that the respondent's injuries were directly and proximately caused by the negligence, carelessness, willfulness and wantonness of the appellant in the operation of his automobile at the time and place aforementioned, in the following particulars: in operating his automobile at a high and excessive rate of speed; in failing to keep a proper lookout; in driving his automobile at a dangerous rate of speed, with a total disregard to the safety of the minor plaintiff and in operating his automobile in a negligent, willful, wanton and careless manner, all in disregard to the safety of the minor plaintiff and in violation of the ordinances of the City of Columbia and the Statutes of the State of South Carolina. The answer of the appellant set up a general denial. He also alleged that the minor respondent suddenly, and without any warning, ran out into the street from between two parked automobiles, and ran directly into the appellant's automobile in such a way that he could not possibly have avoid the collision.

In the case of Cannon v. Motors Ins. Corp., 224 S.C. 368, 79 S.E.2d 369, 371, this rule was announced:

"The question of whether or not there was error in refusing appellant's motions for a directed verdict and judgment non obstante veredicto requires us to consider the testimony and the reasonable inferences to be drawn therefrom in a light most favorable to respondent, Fagan v. Timmons, 215 S.C. 116, 54 S.E.2d 536, and if the evidence is susceptible of only one reasonable inference, the question is no longer a question for the jury but one of law for the Court, otherwise the issue, or issues, becomes a question of fact for the consideration of the jury, Taylor v. Atlantic Coast Line Railroad Co., 78 S.C. 552, 59 S.E. 641."

It is elementary that in order for the plaintiff to recover damages, she must prove not only her injury, but also that it was caused by the actionable negligence of the defendant. Perry v. Carolina Theatre, 180 S.C. 130, 185 S.E. 184. Likewise, it is the rule that the proof of one specification of negligence will entitle the plaintiff to a verdict. Carroll v. Lumpkin, 146 S.C. 178, 143 S.E. 648.

The respondent produced only two witnesses in her behalf. One of these witnesses was the mother of the respondent and she was not a witness to the collision. The other witness, a Mr. Oliver, testified that he had been a resident of Hendley Homes, a housing development where about one thousand families reside, for a period of four years, and operated a Barber Shop on Superior Street, adjacent to the scene of the accident. He also testified that just prior to the accident he had crossed the street, coming from between two cars, and that he saw a car coming down Superior Street about 150 feet, or a half block away. He estimated the speed of the automobile at between 25 and 30 miles an hour. This witness also testified that when he had crossed the street he paid no further attention to the automobile and did not know of any collision with respondent until some third party "hollered" that a child had been hit, nor could he see the child as it was on the other side of appellant's car from him. He did notice, however, that appellant's automobile was parked practically in front of the space, between the two cars, through which he had walked. It should be clearly pointed out here that this witness did not attempt to testify as to the speed of appellant's car at the time of the collision, but only estimated the speed of the car when the appellant was some distance from the point of collision. On cross examination, he stated:

"Q. Didn't you tell us awhile back that when you saw it about 150 feet away it was travelling at a slow rate of speed. That's right, isn't it? A. Yes, sir.

"Q. A slow rate of speed? A. Yes, sir.

"Q. I don't suppose you could, any more than I could, look at an automobile and tell how many miles an hour it's going. A. No, sir.

"Q. That's almost impossible. A. That's right.

"Q. Do you drive a car? A. I know whether it's going fast or slow but I don't ...


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