Dozier v. Charleston Consol. Ry. & Lighting Co. , 133 S.C. 335 ( 1926 )

February 8, 1926. The opinion of the Court was delivered by This is an appeal by the appellant from verdicts recovered against it by the two respondents above set out. The Dozier case was for personal injuries, and the Ilderton case was for injury to personal property. While the two cases were separate and distinct, yet they were both tried together, and the appeals are printed in the same case.

It appears that on March 18, 1922, the plaintiff, Katherine Dozier, was in the City of Charleston, and hired a taxi for the purpose of being carried to the Charleston Hotel, and while on her way to the hotel the collision occurred by reason of the driver of the taxi attempting to pass between two cars going in opposite directions on parallel tracks. The Reporter will set out a short synopsis of the testimony so that the contentions of the parties may be made clear, and he will also give a statement of the pleadings in the cases.

In the H.G. Ilderton case we shall only consider the question as to whether or not his Honor committed error in refusing to direct a verdict for the defendant.

Although it be admitted that the driver had been "signed ahead," as he claimed, yet that would not excuse him from the duty to exercise ordinary care for his own safety and the safety of the occupants of the car he was driving. One man cannot, in a case like this, shift upon another the duty to look out for his own protection and safety. If a danger is obvious, one must, in the exercise of ordinary care, avoid it. Common sense and a common regard for the rights of others require one to avoid this danger. So many cases have laid down this rule that it is a work of supererogation to rehearse them.

It does seem that the driver ought to have had regard enough, not only for his own safety, but for the rights and safety of others and the property under his control not to have tried to run between the two street cars which were going in opposite directions as these were, and it is a case where the driver was guilty, not only of contributory negligence, but also of contributory recklessness as well. There was no reasonable excuse for his conduct on that occasion, and, as the taxi was not struck by the street car in the first instance, which he was trying to pass, and which he claims he was signed ahead of, we see no excuse for his trying to cut ahead of the other car which was meeting the car that he was trying to pass. An invitation to pass one street car could not be stretched into an invitation to head off another car also. The driver of the automobile could deflect his route, while the street car could not do this. We see no reasonable grounds upon which this verdict can be upheld. The Court ought to have directed a verdict for the defendant in the H.G. Ilderton case, and it was error to refuse to do this.

If any authority were needed for the above conclusion, it is found in Dering v. M.E. Railway Light Co., 176 N.W., 343; 171 Wis. 8, 14A; 14 A.L.R., page 809, which holds:

"One struck by a street car in attempting to drive an automobile across the track in front of the car, which had stopped to discharge passengers, may be found to be guilty of negligence if he saw, or could have seen, that the car had started, in time to have stopped his automobile before reaching the track."

The Dozier case, however, is on an entirely different basis. In this case we have a passenger for hire in an automobile who does not in fact control, nor does she have the right to control, the action of the driver. In considering this matter, it must be recalled that this is not a crossing case, where the statutes make a change in the rule by expressed legislation on the matter. This distinction will be readily seen by an examination of the Neely Case hereinafter cited. The correct rule in this matter, as stated in the LangleyCase, Langley v. Railway, 101 S.E., 286; 113 S.C. 49, where Mr. Justice Hydrick clearly shows that it is a question of the right of the person in the car to direct the driver or the actual doing of the same. See Neely v. Railway, 117 S.E., 55; 123 S.C. 449, as to the matter of crossings.

In the case at bar the Circuit Judge gave to the defendant in the twelfth request to charge (let it be printed) a much more favorable instruction of the law than it was entitled to. He should have limited this request by adding that only was the plaintiff barred to recover, if the jury found from the evidence that she did or had the right to control the driver in the present case. The defendant cannot complain where the charge is too favorable to it.

The defendant, by its pleading, recognizes this to be the correct rule, for in its third paragraph of the answer it pleads the common enterprise doctrine, and the right of the plaintiff to control the action of the driver, and that the driver was the agent of the plaintiff, in the following words: "And all the parties in said automobile were engaged in a common enterprise or purpose and the plaintiff was a participant therein and the said driver of said automobile was the agent of the plaintiff," showing clearly that the learned counsel for the defendant understood the rule and pleaded the same in correct form.

Under the following authorities the negligence of the driver could not be imputed to the plaintiff, Katherine Dozier. Neely v. Railway, 117 S.E., 55;123 S.C. 449. Langford v. Southern Railway,101 S.E., 286; 113 S.C. 45. Latimer v. Anderson County, 78 S.C. 879;95 S.C. 187; and other authorities.

"Where a pure case of carrier and passenger is presented there would seem to be no doubt that the negligence of the driver of a motor vehicle cannot be imputed to a passenger so as to bar a recovery by him for injuries sustained." 2 Ruling Case Law, page 1207.

There is an obvious difference between recklessness at a blow post crossing and elsewhere in regard to the matter of imputed negligence. As the plaintiff, Dozier, was not injured at a statutory crossing, as mentioned in the case ofNeely v. Railway, 117 S.E., 55; 123 S.C. 449, supra, the negligence or recklessness of the driver of the automobile could not be imputed to her, for there is some testimony tending to show negligence and recklessness on the part of the defendant, and all questions of fact were settled in her favor by the verdict of the jury. Keisller v. AEtna InsuranceCompany, 117 S.E., 70; 124 S.C. 32. Pinckney v.Knowles, 99 S.E., 354; 112 S.C. 7. Bunch v. American Cigar Co., 119 S.E., 828; 126 S.C. 324. It is, therefore, the judgment of this Court that the judgment of the lower Court in the case of Katherine Dozier be affirmed.

It is the further judgment of this Court that the judgment in the case of H.G. Ilderton be reversed, and that the said case be remanded to the Court of Common Pleas for Charleston County, with instructions to the Clerk of Court to enter up judgment for the defendant under Rule 27 of the Court.

MESSRS. JUSTICES WATTS, COTHRAN and MARION and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.

MR. CHIEF JUSTICE GARY did not participate.