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GREEN v. SPARKS

March 11, 1958

JASON GREEN, RESPONDENT,
v.
CLAUDE E. SPARKS, APPELLANT.



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

March 11, 1958.

This is an action brought by Jason Green, the respondent herein, against Claude E. Sparks, the appellant, to recover damages for personal injuries and property damage sustained by the respondent on October 27, 1956.

The complaint alleges, in substance, that as the respondent was driving his Ford automobile in a southerly direction around a curve on the Cross Keys-Sedalia hard-surfaced highway, the appellant backed his Chevrolet automobile from a private driveway onto the highway into the path of the respondent's automobile, thereby causing him, in order to avoid colliding with the automobile of the appellant, to crash into a ditch on the eastern side of said highway, thereby wrecking his automobile and inflicting personal injuries upon him. The complaint alleges that the resulting personal injuries and property damage were proximately caused by the negligent, careless, reckless and wanton acts of the appellant. The complaint alleges that the appellant drove his automobile without maintaining a proper lookout; in driving and backing said automobile out and into a public highway in violation of the statutory laws of this State, at a rate of speed too fast for existing conditions; in failing and refusing to give any warning of the backing operation of said automobile out into the highway, and refusing to yield the right of way to the respondent as required by law.

The answer of the appellant contained a general denial and also alleged as a defense that the injuries and damage to the respondent, if any, were caused and occasioned by the sole negligence and willfulness of the respondent; and also that the respondent was guilty of contributory negligence and willfulness, in that he was driving his automobile around a curve at a high, excessive and unlawful rate of speed, without having his said automobile under proper control; in driving off the traveled portion of said highway to pass the automobile of appellant when there was ample space upon the traveled portion of said highway for the passage of his automobile, and that he was operating his said automobile with inadequate and defective brakes and tires.

The appellant also set up by way of defense that an accord and satisfaction had been reached and concluded by and between the respondent and the appellant on October 29, 1956, whereby appellant paid to the respondent the sum of $375.00 in compromise settlement of the liability of the appellant, if any, to respondent; and that the respondent executed a release discharging the appellant from any and all liability. The respondent filed a reply, denying the allegations of the answer with reference to the release. He asserts that if he executed a release, which he does not remember, that it was at a time when he "was in a drugged or semiconscious state and during which time his mind and mental processes were befuddled, stupored and impaired, and during which time the plaintiff was utterly incapable and incompetent to make any intelligible decisions." He also asserts that if he executed a release to the appellant that same was obtained through coercion, overpersuasion, and exploiting his poverty stricken condition and necessitous circumstances. He further alleges that the consideration for the purported release was grossly inadequate and completely out of proportion to the serious injuries and damages sustained. Respondent further alleges that simultaneously with the service of the reply, for the purpose of securing the cancellation of said release, he tendered to the appellant the consideration for said release in the amount of $375.00 but the same was refused by appellant. This said sum was immediately deposited by the respondent with the Clerk of Court for Union County, South Carolina, as a continuing tender.

This action was tried before the Civil Court of Union and resulted in a verdict for the respondent for actual damages.

At appropriate stages of the trial the appellant moved for a directed verdict, judgment non obstante veredicto, and alternatively for a new trial. The basis of such motions was that the negligence of the respondent was the sole proximate cause of his injuries and damage; and alternatively that the respondent was guilty of contributory negligence, in that he operated his said automobile upon a wet highway, at an excessive rate of speed, without keeping same under proper control, said car being equipped with defective rear tires and brakes. The other ground submitted was that the only reasonable inference to be drawn from the evidence was that a valid accord and satisfaction had been reached, and that if the respondent had not assented to said accord and satisfaction at the time the same was made, he later ratified and confirmed same by acquiescing in it and by accepting the money paid and using same in the discharge of his medical and hospital bills.

The appellant also asserted as a ground for a new trial, the failure of the trial Judge to charge the jury pursuant to his request, the following:

"I charge you further that if an Accord and Satisfaction was made in this case and even if the plaintiff did not assent to it at the time it was made, yet if the plaintiff later ratified and confirmed it by accepting the money and using it, that would amount to a ratification in law and the plaintiff would be bound by it."

The appellant also asserts as a ground for a new trial that the Court committed error in permitting counsel for the respondent, over objection, to cross-examine the appellant and his witness, Bennie Hill, with respect to the collection of damages from Lockhart Power Company for certain personal injuries sustained by them.

The trial Judge refused the motions for a directed verdict, judgment non obstante veredicto and for a new trial. The case is before this Court upon a number of exceptions.

The first question for determination is whether there was error on the part of the trial Judge in refusing the motions for a directed verdict and judgment non obstante veredicto. The appellant asserts that there was no proof of actionable negligence on his part. He also says that the injuries and damage to respondent were proximately caused by his own negligence. He further asserts that if he was guilty of any negligence, that the respondent was likewise guilty of negligence, which was a contributing proximate cause to his injuries and damage. This question necessarily requires us to review some of the testimony.

The respondent was operating his motor vehicle in a southerly direction, around a curve near what is known as the old Bishop Place on the Cross Key-Sedalia hard-surfaced highway. He says that he was driving at a speed between 40 and 50 miles per hour. A private driveway leads off of the main highway towards the West at said curve and to a house owned by the appellant. The respondent testified that when he was between 70 and 80 feet of the private driveway that the appellant backed his automobile out of the private driveway, which was bounded by hedges, onto the hard-surfaced road. The respondent testified that as the car of the appellant continued to back across the highway that he drove to the left in an effort to avoid striking the automobile of the appellant. The respondent was asked if he did not have plenty of room to travel on the road behind the appellant's car and not hit it. He said: "I don't see how I could do that. If I had 5 or 6 feet I could have kept going." He also testified that in his effort to avoid striking the car of appellant he ran into the bank of the highway on his left.

The evidence shows that on the day in question the pavement was wet and the tires on the car of the respondent were slick. He was familiar with the road, as well as the curve and driveway leading to appellant's house on the right of the hard-surfaced road.

The appellant testified that the hard-surfaced road in question was 20 feet wide. He testified that he had gone to his farm that morning to see a tenant and that when he entered the private driveway, he discovered that the tenant was not there, due to the absence of the truck. He then reversed the gears of his car and started moving backwards at a speed of 3 or 4 miles an hour. He says that when he backed into the highway and as his wheels got onto the hard surface that he saw the car of respondent coming and immediately applied his brakes. He also testified that his car occupied not over 5 feet of the paved surface of the road and that left approximately 15 feet for the passage of the respondent's automobile. Appellant also says that upon seeing the car of respondent he stopped his car, changed gears and moved forward to yield the right of way to the respondent. He says that the respondent had sufficient passage space available to him so that he could have proceeded on down the road without mishap, if he had had his automobile under proper control and had been driving with prudence and caution.

A State Highway Patrolman made an investigation of the wreck and he testified that the appellant told him that "Jason hit the bank instead of hitting me." He also testified, there being no objection thereto in the record, that he found a violation of law by the appellant, such being the "violation of entering a highway and failing to yield the right of way." He testified also that this violation caused the accident.

We deem it unnecessary to further review the testimony.

It is provided in Section 46-424, of the 1952 Code of Laws of South Carolina, that:

"The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on such highway."

It is provided in Section 46-492 of our Code, that:

"The driver of a vehicle shall not back it unless such movement can be made with reasonable safety and without interfering with other traffic."

The testimony above recited indicates the violation by the appellant of the two foregoing statutes. It was the duty of the appellant, when he was backing out of the driveway into the highway to be vigilant, watchful and to anticipate and expect the presence of other vehicles upon said highway. It was his duty to ascertain whether the highway was clear so that he could enter the same without interfering with the use thereof by vehicles approaching on such highway.

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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