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BELGER ET AL. v. CALDWELL ET AL.

June 13, 1957

MRS. DELL BELGER AND JOE DRAWDY, AS ADMINISTRATORS OF THE ESTATE OF GUS DRAWDY, RESPONDENTS,
v.
THOMAS H. CALDWELL AND THOMAS SMITH, APPELLANTS.



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

June 13, 1957.

The sole question in this appeal is whether or not the Circuit Judge erred in refusing appellant Caldwell's motion for a change of venue from Hampton County to Colleton County, the County of his residence, it being contended that the defendant, Thomas Smith, a resident of Hampton County, is not a real party in interest but was so named in order to lay venue in the County of Hampton.

The complaint sets forth, in part, that on the night of December 18, 1954, respondents' intestate, Gus Drawdy, while walking along the shoulder of Highway 28 in the Town of Varnville in Hampton County was struck and killed by a car driven by appellant Caldwell; that the intestate's death was due to and proximately caused by the joint and concurrent negligence, heedlessness, carelessness, recklessness, willfullness, wantonness, and gross negligence of the defendants (appellants) in the following particulars, to wit:

"(a) In the defendant, Caldwell, driving and operating his automobile in a fast and dangerous rate of speed and at a speed that was excessive in view of the conditions then existing.

"(b) In the defendant, Caldwell, driving and operating his automobile at a speed that was in violation of the Statutory Laws of the State of South Carolina and of the Ordinances of the Town of Varnville.

"(c) In the defendant, Caldwell, driving and operating his automobile off the paved portion of said highway onto and upon the shoulder thereof at a time and place where plaintiffs' intestate was occupying same.

"(d) In the defendant, Caldwell, failing and refusing to apply his brakes and stop his automobile before striking plaintiffs' intestate.

"(e) In the defendant, Caldwell, failing and refusing to give any warning to plaintiffs' intestate.

"(f) In the defendant, Caldwell, failing and refusing to use any precautions whatsoever to avoid running into and striking plaintiff's intestate.

"(g) In both defendants failing and omitting to keep their automobiles under proper control.

"(h) In both defendants failing and omitting to keep a proper lookout.

"(i) In both defendants failing and omitting to take any precautions or use any due care in order to prevent said collision and the resulting death of the plaintiffs' intestate.

"(j) In the defendant, Smith, failing and refusing to dim and blink the lights on his automobile when meeting the automobile driven by the defendant, Caldwell.

"(k) In the defendant, Smith, failing and refusing to dim the lights on his automobile in violation of the Statutory Laws ...


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