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GREEN v. BONEY

May 13, 1958

WILLIAM GREEN, RESPONDENT,
v.
FURMAN BONEY, APPELLANT.



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


   May 13, 1958.
This action was brought to recover damages for personal injuries sustained by plaintiff as a result of an automobile collision. Defendant denied all acts of negligence and recklessness alleged in the complaint, set up a plea of contributory negligence and willfullness, and by way of counterclaim sought to recover damages for personal injuries sustained by him. The trial resulted in a verdict for plaintiff for $12,500.00 actual damages and $2,000.00 punitive damages. This appeal by defendant followed.

There are numerous questions raised by the exceptions. We shall first consider whether the Court erred in refusing a motion for a directed verdict made by defendant upon the grounds (1) that there was no evidence of any actionable negligence on his part, and (2) that the plaintiff was guilty of contributory negligence and willfullness as a matter of law.

The collision occurred between 1:00 and 2:00 p. m., on Monday, December 26, 1955 at a point on U.S. Highway No. 21, about one-half mile south of the town of Ridgeway, Fairfield County. Plaintiff, a Negro about 50 years of age who lived at Ridgeway, accompanied by a friend, Otis Buggs, was driving a 1952 Chevrolet car in a southerly direction and defendant, a white man in his late twenties who also resided at Ridgeway, accompanied by a friend, Robert Morgan, was driving a 1956 Ford automobile in a northerly direction. Although there is some testimony to the contrary, the overwhelming weight of the evidence is to the effect that the collision occurred while plaintiff was seeking to make a left turn for the purpose of going to a combination grocery store and service station located on the east side of the highway. The front of defendant's car struck the right front side of plaintiff's car. The point of impact was approximately four feet from the center of the highway in the northbound lane. There were skidmarks in defendant's lane extending for a distance of 175 feet to the point of impact. The Chevrolet was knocked back 25 feet at an angle. The Ford came to rest about 16 feet from the point of impact. Both cars were extensively damaged. Buggs died almost instantly. Plaintiff and defendant, both of whom were seriously injured, were taken in an ambulance to a hospital in Columbia.

The accident occurred on a clear day. The pavement of the highway was 24 feet wide with five foot shoulders. In approaching the place of collision, defendant climbed a 5% grade and after reaching the crest of this hill, the road was approximately level to the point of impact — a distance of two or three hundred feet. A surveyor testified that as plaintiff approached the place of collision, any oncoming traffic would have been visible for a distance of about 500 feet. At the point where plaintiff made a left turn, there was a yellow "nonpassing" line on his side of the road.

Plaintiff testified that he was traveling in a southerly direction on this highway at a speed of about 25 miles an hour; that it was necessary for him to make a left turn to go to a grocery store to buy some items for his wife who was ill; that before undertaking to do so, he looked in both directions and there were no cars in sight; that he then extended his hand for a left turn; and that about the time he had made the turn, he saw a car come over the crest of the hill and "before you could bat your eye he was in to me."

Defendant testified that due to his injuries he did not recall the collision and that the last thing he remembered was turning around in the highway at a point about a mile south of the place of the accident. He admitted, however, that his "ordinary speed was somewhere in the neighborhood of 65 to 70 miles an hour." One of his witnesses, who claimed to have seen the collision, testified that when the defendant was within 20 or 25 feet of plaintiff, the latter, without giving any signal, made an abrupt left turn in front of the defendant's car. Morgan who, as above stated, was riding with defendant, testified to the same effect. There is some suggestion that plaintiff was drinking but the overwhelming weight of the evidence is to the contrary.

Defendant claims that plaintiff's version of the accident is "inherently incredible" and that the testimony conclusively shows that plaintiff made a sudden left turn just before the two cars met, after which he (defendant) applied his brakes and did everything reasonably possible to avoid the accident. He says that his speed, even if excessive, could have had no causal connection with the accident. It is strenuously argued that the plaintiff negligently and recklessly crossed a non-passing yellow line made by the Highway Department and drove in the defendant's lane of traffic when it should have been obvious to him that he could not do so with reasonable safety.

Section 46-388 of the 1952 Code provides that no vehicle shall at any time be driven to the left side of the roadway "when approaching the crest of a grade or upon a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction."

46-389 is as follows: "The Department may determine those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the directions thereof."

Section 46-405 provides that no person shall "turn a vehicle to enter a private road or roadway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety."

Apart from statutes, the courts generally recognize the danger frequently present in undertaking to make a left turn between intersections in order to enter a private driveway. Blashfield, Cyc. Automobile Law and Practice, Permanent Edition, Volume 2, Section 1170. An excellent review of cases involving left turns between intersections will be found in Fisher v. Reilly, 207 Or. 7, 294 P.2d 615, 623. As there pointed out, while many courts hold that drivers making such turns must exercise "extraordinary precautions", "maintain due care", a "high degree of care" and the like, the test after all is "what would an ordinarily prudent person have done under the same circumstances." Reasonable care means care commensurate with the apparent danger.

The phrase "with reasonable safety" in Section 46-405 does not mean that a left turn into a private driveway can only be made when it can be done free from all possibility of danger, or that the party making such turn must be certain of absolute safety before he turns. Virginia Electric & Power Co. v. Holland, 184 Va. 893, 37 S.E.2d 40; Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115; Washam v. Peerless Automatic Staple Machine Co., 45 Cal.App.2d 174, 113 P.2d 724; Young v. Blue Line Storage Co., 242 Iowa 125, 44 N.W.2d 391; Blashfield, supra, Volume 2, Section 1121.

In Washam v. Peerless Automatic Staple Machine Co., supra, [45 Cal.App.2d 174, 113 P.2d 727] the Court said:

"It will be observed from the language of Section 544 that a left-hand turn on a public highway shall be made only when it can be done with reasonable safety. No definite distance from the turning vehicle is prescribed for the moving object which might interfere with safety. From the language of that section, it is to be concluded that the driver making the left turn must exercise that degree of care that should be exercised by a person of reasonable caution and prudence under the same circumstances. Whether the party making the turn exercised such reasonable care was a fact to be determined by the trial court from all of the evidence in the case. If this were not so, the ...


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