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SHEPHERD v. U.S. FIDELITY & GUARANTY CO.

December 8, 1958

PHILIP L. SHEPHERD, RESPONDENT,
v.
UNITED STATES FIDELITY & GUARANTY COMPANY, A CORPORATION, M.H. HALL AND MRS. M.H. HALL, APPELLANTS.



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


   December 8, 1958.
Respondent recovered verdict and judgment for damages for personal injuries incurred when his automobile, which he was driving, was in collision with appellants' runaway automobile on the road or street in front of the personal appellants' home. The location is a residential suburb of Columbia and the "street" is a paved farm-to-market, unlighted road, which is known as Furman Avenue.

The appellant Hall is an employee of the corporate defendant which owned the offending automobile but permitted his and Mrs. Hall's personal use of it. She had taken her daughter to dancing school, stopped to shop en route home and parked the automobile at the head of the driveway, adjacent to the side of the residence, at about nine o'clock on the night of the accident. She testified that she knew that she set the emergency brake and shifted the gears to "park" because that was her fixed habit; she would not say that she had an independent recollection of having taken these precautions on this occasion. Her husband was already asleep in bed and as she was making preparations therefor at about ten o'clock she heard the collision and aroused her husband. A neighbor also went out from his home. Upon respondent's insistence, an officer was called. He testified, as did other witnesses, that the driveway declined sharply into the street; and further that respondent and Hall agreed at the scene that they could come to terms, so the officer made no charges.

Upon examination of the runaway car, which was without lights, it was found by the witnesses that the automatic gear shift was in "neutral", and the brakes (which were in good condition) were not applied; the left front window was down, whereas Mrs. Hall testified that when she parked the vehicle she left the window up, as was her custom. It was established in testimony that there was a decline from the parking place to the street of from seven to ten feet although the immediate parking area was almost level.

The appeal is from the denial of the usual defensive motions and from the judgment entered upon the verdict. The first question submitted is that the evidence was insufficient to submit to the jury the issue of appellants' negligence because of the lack of evidence as to the cause of the runaway, in view of Mrs. Hall's testimony that she had properly adjusted the gears and the brakes when she parked the car at the top of the incline. However, the contrary condition of the car immediately after the collision, which was undisputed, is strong circumstantial evidence that she was mistaken in her testimony and that her negligent act was the proximate cause of the injuries. On the other hand, it would be plain conjecture to suppose some intervening cause, such as the act of a prankster, of which there was no evidence.

The doctrine of res ipsa loquitur is not recognized in the decisions of this court but the efficacy of circumstantial evidence to prove negligence is. Eickhoff v. Beard-Laney, Inc., 199 S.C. 500, 20 S.E.2d 153, 141 A.L.R. 1010, annotation. In the absence of exact precedent for this case in our decisions the declarations of the law elsewhere, to which we now advert, are persuasive.

The following quotation is from 2A Blashfield, Cyclopedia of Automobile Law and Practice, p. 77, sec. 1206:

"The unexpected presence upon a public highway of a `runaway' automobile, without a driver or occupant, has been held to raise a prima facie presumption of negligence on the part of the owner, being of itself sufficient to take the question of negligence to the jury, and, assuming that no one has touched it after it was left by the operator, is sufficient to warrant the jury in concluding that he was negligent in not properly securing the machine in position. The fact that the car remained stationary for some time before starting into motion does not relieve the driver from this presumption of negligence." (We prefer the term "inference" (of negligence) which we think is more accurate in this context than is "presumption." Many decisions refer to "presumption or inference.")

In Vaughan v. Meier, Mo. 1922, 246 S.W. 279, an automobile was left on street of 8% grade which it rolled down from ten minutes to three-quarters of an hour afterward and after a heavy fire truck passed it. Held: jury issue whether negligence of operator was the proximate cause of injury to plaintiff, despite attempt of bystander to stop car which may have steered it into plaintiff; defendant should have foreseen such an intervention. Oberg v. Berg, 1916, 90 Wn. 435, 156 P. 391, involved conflicting evidence as to whether boy meddled with car after it was parked on grade by operator who testified that he applied brakes and turned the wheel to curb. Held: issue for jury whether there was negligence which was proximate cause of injury to plaintiff. 1 Shearman & Redfield, Negligence, 5th Ed., sec. 59, was quoted with approval, as follows: "When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care." (A later Washington case of contrary result is cited in appellants' brief, Joseph v. Schwartz, 128 Wn. 634, 224 P. 5, 6, in which the court was evidently influenced by the lapse of time, "at least five or six hours", between the parking and the runaway. Moreover and more important, plaintiff's only effort to prove negligence was by the testimony of defendant who was called by plaintiff and made his witness.)

It is realized that the last quoted text is close to, if it does not embrace, the doctrine of res ipsa, which we do not accept; but it comports with our holding in Brock v. Carolina Scenic Stages, 219 S.C. 360, 65 S.E.2d 468, 470, that in some instances at least, as there and as here, the fact that the evidence does not clearly disclose the cause of an accident does not necessarily exculpate the defendant. Quotation from the opinion is pertinent here: "We think the circumstances heretofore set out, when considered together, are sufficient, in the absence of any explanation by the defendants, to warrant an inference that the collision was caused by the bus being driven to the left of the center of the highway. * * * While the difficulty of proof does not relieve plaintiff of the burden of proof, yet in a situation like this, the Court should take a very liberal view of the testimony."

   The following is from the opinion in Barbanes v. Brown,
1932, 110 N.J.L. 6, 163 A. 148, in which judgment for
plaintiff was affirmed: "Of course, the unexplained presence
upon a public highway of a `runaway' automobile, without
driver or occupant, running down grade along and across
the street and colliding with and damaging another automobile
lawfully there, raises a prima facie presumption of negligence
upon the part of the owner of the runaway automobile.
Sheridan v. Arrow Sanitary Laundry Co., 105 N.J.L. 608,
 146 A. 191." Judgment for plaintiff was also affirmed
in Latky v. Wolfe, 1927, 85 Cal.App. 332, 259 P. 470, 477,
in which it was said: "There is no reasonable ground for doubt that the defendant's act in parking his car on the
incline of the grade and leaving it there parked and unattended,
without taking extra precautions which those circumstances
would seem to require, to require, to prevent the car from
leaving its position and going down the grade, constituted
gross negligence. In such a situation, a car left stationed on
the brow of an incline, unattended by anyone, might be
expected to leave its position at any time and proceed down
the incline, from the concussion necessarily and constantly
produced by the heavy auto traffic or the movements with
the usual speed of the bulky trucks and other vehicles along
the street with which the alley in connected, unless the
brakes were perfectly intact and thoroughly set. Knowledge
of these facts is imputable to those who are accustomed
to driving and otherwise handling automobiles." There was
also affirmance of judgment for plaintiff in Hughes v. Rentschler
Floral Co., 1927, 193 Wis. 49, 213 N.W. 625, 626,
from which is the following: "Unquestionably, if the testimony
of the driver is to be taken as absolutely true to the
effect that he put his brake on tightly and cramped the wheel
in against the curb, such action on his part would be ordinary
care. We do not think the jury were bound to accept
his statement, in view of all the facts, as being true. The jury
might find that he was mistaken, or that his memory was at
fault." The special relevance of the latter to the case in hand
is patent.
Appellants cite cases from other jurisdictions in which, however, the issue of liability was held to have been for the factfinders, just as we hold here. Fuller v. Magatti, 231 Mich. 213, 203 N.W. 868; Gorfain v. Gorfain, 118 Conn. 484, 172 A. 924. In other cases cited the defendants adduced evidence that boys were seen tampering with the vehicles between the parking and the runaway of them. Keber v. Central Brewing Co., Sup., 150 N.Y.S. 986; Touris v. Brewster & Co., 235 N.Y. 226, 139 N.E. 249; Buzzello v. Sramek, 110 Neb. 262, 193 N.W. 743. Finally as to appellants' citations, the still later Washington case of Hughes v. Jolliffe, 50 Wn.2d 554, 313 P.2d 678, held merely that res ipsa loquitur did not apply to the facts presented, with which we of course agree.

Many other decisions upon the subject are reviewed in the annotation in 16 A.L.R.2d 979. From the footnote on page 984 we quote: "The majority of the cases rest this conclusion (of liability) upon the doctrine of res ipsa loquitur. However, similar results are sometimes reached in jurisdictions not recognizing that theory, and in a number of cases it has not been explicitly mentioned."

The trial court did not err in submitting the issue of negligence to the jury in the instant case.

The court rejected the proffered testimony of a near but not next door neighbor of the Halls who was asked whether he had had, quoting from the record, "any experience of your automobile being tampered with while in your driveway or on your premises?" Answer to the question was properly excluded. It did not relate to the premises of the Halls or to the night in ...


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