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SMITH v. LYNCH ET AL.

April 10, 1958

MARY W. SMITH, ADMINISTRATRIX OF THE ESTATE OF CLAUD C. SMITH, DECEASED, RESPONDENT,
v.
CHARLES E. LYNCH, ADMINISTRATOR C.T.A. OF THE ESTATE OF ETHEL MAE KELLEY, DECEASED AND ONE 1953 4-DOOR CADILLAC AUTOMOBILE BEARING 1955 MARYLAND LICENSE PLATES DA 2061, APPELLANTS.



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

April 10, 1958.

In this action for wrongful death resulting from collision, at the intersection of two paved highways, between a Plymouth station wagon driven by plaintiff's intestate and a Cadillac automobile driven by defendant's intestate, verdict was for the plaintiff in the sum of $45,000.00 actual, and $500.00 punitive, damages. The appeal charges error on the part of the trial judge in his denial of motions for nonsuit, for direction of verdict, and for judgment n. o. v. or, in the alternative, new trial.

The accident occurred about 7:55 a. m. on February 8, 1955, at Bell's Cross Roads, the intersection of U.S. Highway No. 21 and State Highway No. 64, in Colleton County. Highway 21 runs north-south; Highway 64, east-west. Both are paved, eighteen feet wide, and marked with center lines. The weather was clear and the pavement dry. The Plymouth was traveling northward on Highway 21; the Cadillac, westward on Highway 64. They collided approximately at the center of the intersection, the front of the Plymouth striking the left front door of the Cadillac.

At the southeast corner of the intersection, just beyond a cleared "sight area", is Herndon's combination service station and grocery. On the south side of Highway 64, some 350-400 feet east of the intersection, is a service station and store that at the time of the accident was operated by a Mr. Carter, now deceased.

Traffic on Highway 64 is required to stop before entering its intersection with Highway 21. For traffic westbound on Highway 64 approaching the intersection there are the following signs, in the order named: (1) at a point 580 feet east of the intersection, "Stop Ahead"'; (2) a sign bearing the name "Bell's Cross Roads"; (3) a sign indicating junction with Highway 21; (4) "Stop". For traffic northbound on Highway 21 approaching the intersection, there are: (1) a sign bearing the name "Bell's Cross Roads"; and (2) a sign indicating junction with Highway 64.

Respondent's intestate, Claud C. Smith, was alone in the Plymouth station wagon, which, as before stated, was traveling northward on Highway 21. In the Cadillac, which was traveling westward on Highway 64, were two ladies. Mrs. Ethel Mae Kelley, of Ocean City, Maryland, was driving; Miss Lillias Cropper, of Washington, D.C., was in the car with her. Of the occupants of both cars, Miss Cropper was the sole survivor. Mr. Smith was instantly killed; Mrs. Kelley died three days later of injuries sustained in the collision.

The facts before stated are undisputed. We proceed, then to consider the issues raised by the exceptions, to wit:

1. Was there sufficient evidence of actionable negligence on the part of appellant's intestate to take that issue to the jury?

2. Was there sufficient evidence of recklessness or willfullness on the part of appellant's intestate to take that issue to the jury?

3. Did the evidence require the conclusion, as a matter of law, that respondent's intestate was guilty of contributory negligence or of contributory willfullness?

4. Is the verdict so grossly excessive as to require this court to set it aside?

Francis Spell, a salesman, testified that on the morning in question he was at Carter's store, and that, having finished transacting his business, he was standing at the front of the store, inside, talking with Mr. Carter, when a black car (that later proved to be the one driven by Mrs. Kelley) passed the store, traveling toward the intersection. As a result of a remark by Mr. Carter, Spell looked in the direction of Bell's Cross Roads and caught a glimpse of the car again, about half-way between Carter's store and Bell's Cross Roads. Its speed, which he estimated at between 50 and 60 miles per hour, did not appear to decrease as it approached the intersection; and he saw no tail light go on. He did not see the Plymouth approaching the intersection, his view of Highway 21 being obstructed by Herndon's store; but he saw the collision at the intersection and thereupon went to the scene, where he found Mr. Smith and Mrs. Kelley lying on the pavement. Spell was unable to state the positions of the two vehicles, but recalled that the Cadillac appeared to have been struck on the left door, and that the motor of the Plymouth had been knocked out and was lying in the road. He saw no marks on the pavement indicating that brakes had been applied on either car. Under cross examination, he stated that he did not remember, but would not deny, having told the defendant Lynch, a few days after the accident, that he had not actually seen the collision.

Highway Patrolman J.R. Grooms went to the scene shortly after the accident happened. From the marks on the pavement it appeared that the point of collision was about two feet northeast of the center of the intersection. From that point the Cadillac had slid northeastward a distance of approximately 105 feet and had come to rest headed east; and the Plymouth had slid in the same direction, approximately 39 feet, and was headed west. The Cadillac appeared to ...


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