Daughrity v. Williams , 144 S.C. 437 ( 1928 )

April 16, 1928. The opinion of the Court was delivered by The plaintiffs sued in the Court of Common Pleas for Sumter County, for personal injuries alleged to have been sustained by Mrs. Daughrity in the collision of two automobiles, occurring on a public street in the City of Sumter. Mrs. Daughrity was driving one of the automobiles, and defendant's daughter was operating his car. The charge of negligence on the part of defendant's daughter was denied by the defendant, who also claimed that Mrs. Daughrity's injuries were received on account of her contributory negligence. The allegations of negligence charged against the two drivers of the respective cars related principally to the provisions of an ordinance of the City of Sumter: the substance thereof being alleged in the fifth paragraph of the plaintiff's complaint, which will be reported. The verdict of the jury was in favor of the defendant, and the appeal is by the plaintiff.

There are five exceptions, all of which impute error to the charge of the trial Judge, Hon. M.M. Mann; and they should be reported. It is not necessary to examine separately all of the exceptions.

The appellant complains that some of the instructions, referred to in the exceptions, amounted to a charge on the facts. We are unable to agree with this position. We think from our examination of the whole charge that the trial Judge refrained from giving any intimation to the jury of his opinion of the facts in the case, and, to the contrary, that he expressly and repeatedly informed the jury that the facts were entirely for them.

It is urged in the first exception that the jury were charged that, if the plaintiff was traveling in excess of the rate of speed permitted by the city ordinance, she was guilty of negligence, or contributory negligence, and could not recover. The Judge was right in his instruction to the effect that one who drives an automobile in excess of the speed limit fixed by a municipal ordinance is guilty of negligence per se. And he was also correct, as we understand his charge, when he instructed the jury that, if negligence of that kind on part of the plaintiff was the proximate cause of her injuries, she could not recover.

It was the duty of the Judge to construe and explain to the jury the provisions of the said ordinance, and such explanation by him was not a charge on the facts.

If the case had been one against a railroad corporation for damages to the person or property of a traveler, occurring at a railroad crossing, the illustration given by the Circuit Judge, as referred to in the second exception, would have been, perhaps, not technically in accord with the law. The purpose of this instruction, however, was to illustrate to the jury what the trial Judge meant when he was endeavoring to inform the jury as to the meaning of proximate cause. Charged for the purpose stated, in the case at bar, we are unable to find any error as complained of.

We do not think the charge of the Court as to accident was prejudicial error. There was no claim for punitive damages in the case on the part of either the plaintiff or the defendant. This Court has held that the law does not impose liability for a mere accident, which could not have been guarded against. Hodge v. Lumber Corporation,90 S.C. 229; 71 S.E., 1009. The language used by the trial Judge to the effect that the law does not punish one for an accident, but it only punishes one for a conscious wrongdoing, taken in connection with other portions of the charge, was not confusing to the jury, in our opinion. In other parts of the charge, the jury were clearly instructed that, if the negligence of the defendant's agent, his daughter, who was in charge of the car, caused the injuries of the plaintiff, and there was no contributory negligence on the part of the plaintiff which proximately caused the injuries, the defendant would be liable.

It is our view, taking the charge as a whole, the jury was correctly instructed as to the law applicable to the facts of the case, and we are unable to sustain any of the exceptions.

The judgment of this Court is that the judgment below be affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, STABLER and CARTER concur.