Walker v. Lee , 115 S.C. 495 ( 1921 )

The opinion of the Court was delivered by

Mr. Justice W ATTS.

This is an appeal from a judgment entered in this case for a verdict for $400 actual damages. The action was for damages in tort for injuries caused by the alleged negligence of defendants in driving their automobile. The defense was a general denial and alleged contributory negligence on the part of the -plaintiff. The cause was tried by Judge Whaley and a jury in the County Court for Rich-land county in March, 1920. The exceptions, seven in number, complain of error in his Honor’s charge to the jury and in failing and refusing to charge certain requests submitted by defendants, and that the verdict was contrary to law and evidence.

The principal point raised by all of the exceptions, and the question that underlies all of the exceptions, is whefher, under section 617 of the Criminal Code of 1912, the plaintiff is to be held free from contributory negligence when by the exercise of due care he should have gone around behind defendant’s automobile.

1 Under the general principle of law, contributory negligence prevents a recovery, and his Honor so declared, but his Honor made an exception in this case, and held that under Section 617, Criminal Code, and Section 2157, Civil Code, 1912, the plaintiff, even if in the exercise of due care he should have gone around behind defendant’s automobile and to the left of the center of the road, in so doing was under no obligation to do so by reason of the statutes, and was not guilty of contributory negligence. His Honor was clear-cut and concise on this point and made it clear to the jury.

2, 5 We think his Honor was in error. A proper construction of the statutes does' not require that one should at all times stay in the right of the center of the road, but it means that a party must take the right when he is meeting one, so as to give the party coming from the opposite direction his right of way unobstructed. A party has a right to travel on either side 'of the road, provided no one is coming front the opposite direction, and provided he is not obstructing the passage of any other person. A traveler can cross from one side to the other, provided no one is there, provided he obstructs no one’s passage and provided he injures no one by so doing, in-person or property. When one violates a statute or ordinance, he is guilty of negligence per se, but he is bound to technically violate either if by so doing he can avoid inflicting injury to person or property. The question should have been submitted-to the jury whether Walker could by the exercise of reasonable care have avoided the collision. In this case the mere fact that he was where he had a right to be under the law does not relieve him from exercising due and.ordinary .care, such as an ordinarily prudent person is required to do, to prevent a collision and avoid injury to perspn and property. Even though a person is driving where he has a right to, he must act under the emergencies of any case and exercise due care and circumspection, so as to prevent collisions and injuries, provided he does not obstruct the rights of the others traveling in a different direction.

The exceptions are sustained, and a new trial granted.

New trial.

Mr. Chiee Justice Gary and Mr. Justice Cothran concur.