Summary
In Mullis v. Pinnacle Flour Feed Co., 152 S.C. 239, 149 S.E. 329, cited by plaintiff, it is held that while it is not negligence per se to stop and park an automobile in the middle of a highway, a person there stopping or parking an automobile should use such ordinary care for the rights of other travelers on the road as is consistent with their safety.
Summary of this case from Cavett v. Pacific Greyhound LinesOpinion
12727
August 27, 1929.
Before TOWNSEND, J., Richland, February, 1929. Affirmed.
Action by G.L. Mullis against the Pinnacle Flour Feed Company. From a judgment overruling a demurrer to a complaint, defendant appeals.
The complaint was as follows:
"Plaintiff alleges in this his amended complaint:
"1. That at the time hereinafter mentioned the defendant, Pinnacle Flour Feed Company, was and now is, a corporation duly organized and chartered under and by virtue of the laws of the State of South Carolina, and having its principal place of business in the City of Columbia, County of Richland, and State aforesaid.
"2. That on or about the 10th day of April, 1928, plaintiff was on his way from Buffalo, South Carolina, to Columbia, South Carolina, and just out of Little Mountain, South Carolina, on the public highway in Newberry County. Plaintiff was going over a hill, and the defendant was in charge of a truck which truck was out of repair and had been stopped by the defendant at or near the center of the highway, and while plaintiff was approaching said defendant's truck, which defendant was operating in the scope of its work, the plaintiff met another car approaching from an opposite direction, and plaintiff's car and the said other car, ran and operated by L.P. Gear, the plaintiff's car was caused to run into the truck in which the defendant was running. That as a result of said collision, plaintiff's car was greatly damaged, to wit, the side, door and top, as well as plaintiff's shoulder and plaintiff was otherwise injured in both body and mind, to wit, in the hip and knee and head.
"3. That the damage to plaintiff's car and to the plaintiff himself was directly due to and proximately caused by the negligence and willfulness of the defendant in the following particulars:
"(a) In that the defendant stopped said car in the center of the highway, when it should have run the said car to the right of the highway and gotten it off of the highway, where automobiles and other traffic are constantly going backwards and forwards.
"(b) In failing to have some danger signal or flag on top of the hill from the way in which plaintiff was approaching in order to notify or warn the plaintiff of the danger, as aforesaid, knowing that the hill was steep and sharp and hid the said truck in the road from the view of an approaching automobilist.
"(c) In stopping the said car and parking same in the middle of the road at the foot of a sharp and steep hill, knowing that the same was obscure from the view of the traveling public and of the plaintiff.
"4. That by reason of the negligence and willfulness of the defendant, plaintiff has been damaged in the sum of twenty-five hundred ($2,500.00) dollars, for which amount plaintiff asks judgment and costs."
Mr. C.T. Graydon, for appellant, cites: As to negligence: 128 S.C. 383; 118 S.C. 358.
Mr. John K. Hamblin, for respondent, cites: Liability for obstructing highway: 89 S.C. 511; 71 S.C. 170; Id., 174; 105 S.C. 255; 104 S.C. 271; 114 S.C. 147; 128 S.C. 379; 148 S.C. 162; 146 S.C. 179.
August 27, 1929. The opinion of the Court was delivered by
For the reasons assigned by his Honor, Judge Townsend, and under the additional case of Langford v. Atlantic Coast Line R. Co., 148 S.C. 510, 146 S.E., 417, and case therein cited it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER and CARTER concur.
JUDGE'S ORDER
This cause comes before me on a demurrer to the complaint for failure to state facts sufficient to constitute a cause of action, in that it alleges no negligence on the part of defendant, it not being negligence under the law for a truck to be stopped in the road where it can be seen by travelers thereon.
While it is not negligence per se to stop and park an automobile in the middle of a highway, a person there stopping or parking an automobile should use such ordinary care for the rights of other travelers on the road as is consistent with their safety. The complaint alleges that the defendant both negligently and willfully stopped its automobile in the center of traffic on a steep and sharp descent, where it was hid from the view of an approaching automobilist, in a much used highway. If the plaintiff should prove such facts, and that the defendant knew that the parked automobile was obscured from the view of the traveling public, more than one inference might be drawn by the jury as to negligence and willfulness. American Express Co. v. Terry, 126 Md., 254, 94 A., 1026, Ann. Cas., 1917-C, 650; Lipford v. Gen. Road Drainage Co., 118 S.C. 358, 110 S.E., 405.
The issues as to proximate cause and contributory negligence should be left to the jury. Bowers v. Carolina Public Service Co., 148 S.C. 161, 145 S.E., 790.
It is therefore ordered that the demurrer to the complaint be, and is hereby, overruled, with leave to the defendant to serve an answer to the complaint within 20 days.