*1 n .360
BROCK v. CAS. CO. CAROLINA SCENIC STAGES & CAROLINA
OF BURLINGTON (2d) 468) E. (65 S. Appellant, & Lyles Lyles, Messrs. Spartanburg, for *2 Odom, Watt, Messrs. Bostick Nolen & R. Sam Respondents, Spartanburg, for
Messrs. & Lyles Lyles, Spartanburg, Appellant, in Reply. 31, 1951.
May
OxnER, Justice. This action was brought against Carolina Scenic Stages insurer, and its Carolina Casualty Company Burlington, Carolina, North to recover for the damages alleged wrongful Brock, death of Iris Shirley girl twelve years of age, who died as a result of instantly injuries received a collision truck and a between a Chevrolet bus owned and operated by the Carolina The case is Stages. here on Scenic appeal by from an order nonsuit and an order plaintiff refusing
a motion for a new trial. The for determination only question is whether there is an any testimony warranting reasonably in the of actionable said inference operation bus. 16, occurred about 8:30 collision A. M. August six miles from the City Spartan- approximately at or near of a to fourteen cent twelve
burg, apex per curve, on a surface treated between Boiling Springs The surface treated Falls. road Valley portion 18 feet There were wide. dirt shoulders. approximately toward Falls and traveling Valley The bus was Spartanburg cent and'was down two going per grade inside of The truck the curve. traveling direction. opposite the road was foggy raining slick. Plaintiff’s riding intestate was seat of the truck with her father *3 killed a instantly who was also result the collision. the sole were They truck. occupants there Apparently no other the driver of eyewitnessess were bus except if and the thereon. Plaintiff any, passengers, sought her case circumstantial establish evidence. taken after the
Pictures accident shortly show that at was the left front of each major vehicle point impact collision. indicated head-on in- may reasonably and' ferred that either the bus or the truck was driven course, the center of the the left of Of highway. it is possible both were over the center line. The bus 7was feet 10 wide, or one foot than half inches less approximately The width of the highway. traveled truck portion inches. No tracks skid marks were found on was 76l/2 The evidence does not disclose the exact pavement. in the curve the collision occurred. that the Assuming where found, collided where the debris was vehicles the bus traveled 54 after the collision approximately feet pavement the left diagonally then shoulder distance proceeded along to rest a cement culvért against with and came 75 feet on the truck’s side of in the ditch the road. left wheels both shoulder was along clearly The movement its An examination showed that the tracks. indicated though completely badly damaged, front wheel was down, thereon deflated. truck the tire broken on its side. crosswise front of the bus lying found of a mile from the about three-tenths A witness who lived front his sitting accident testified that while scene of the and waved to the father truck passing he saw porch intestate,' he knew. He said the whom the-plaintiff’s miles an hour. from 20 to 25 running a nineteen year was given' by testimony The following from about 150 to feet home located whose boy old the highway: Yes, 1949? A. August recall the day Do
“Q. you sir. in front of took' out there When this collision place
“Q. Yes, house? A. sir. your Brock truck before it to the —A. got Did see you
“Q. before it to where the sir, got about 75 feet Yes, I saw it bus stopped. You about 75 if I understand. saw it me see
“Q. Let —A. Where wreck feet before where it stopped stopped it. 75 feet the wreck That would About before
“Q. happened. from Falls the culvert on Valley 75 feet towards be about Yes, road? A. sir. side of the that? A. It is about'75 feet. You are estimating “Q. Where, it? A. I had when saw you you
“Q. James *4 in the house. started or where been were you you going?" where had But
“Q. and started into the from the barn house. I had come A.
[*] [*] [*] for estimate the of the I like to you speed would “Q. He was about 25 miles doing saw it? A. when you truck an hour. on? A. road was he On his of the right side What
“Q. side. then, Now did down to the you On his side.
“Q. go Yes, sir, I A. down the wreck afterward? went after wreck happened.”
The father of the above witness testified: “Q. you How did scene of this go wreck? happen I started to the barn when I heard A. the crash and ran back there.
“Q. noise, air, What did A. I you hear? hear escaping and then immediately crash following, rumbling, sound. nn
“Q. air Immediately hearing that noise you spoke of, what I you did do? A. looked towards the road but ran couldn’t see anything down few steps my saw the and little about 10 feet before they come to a stop.'
“0. Where truck in relation to the bus when little front, first it? you saw A. being pushed down the road bus. then, did What do “Q. you Mr. Solesbee?
[*] [*] [*] “A. I to the ran almost road and saw people ran dead back were to the apparently house and got the an truck and and called ambulance.” went None of the witnesses saw the bus to the prior collision. no, there is direct Accordingly, evidence of its or the speed on which it was portion traveling immed- debris, the accident. All iately preceeding with the ex- truck, of a from the brace ception bumper was found side of the truck’s road. An examination of the bus that its rear showed tires were slick and worn to the cord. tires, There was some tread on front although one wit- ness testified that these “reasonably slick”. constitutes a foregoing brief résumé of plaintiff’s
testimony. The only evidence offered defend ants consisted certain They did photographs. course, the bus other any (Of offer the driver witness. should have been a directed motion verdict defendants’
365 a motion' be as regarded a nonsuit. It will rather than verdict, counsel raises no ques- since directed plaintiff’s for a of the motion.) to the character as tion out,
We think the circumstances heretofore set when sufficient, considered are in the absence together, an any explanation by defendants, warrant inference the collision was caused being driven to of the center of before highway. Just the collision the truck was seen at a traveling moderate rate debris, on the side of All the the road. speed proper metal, of one was on the truck’s side exception piece curve, around the inside of highway. going this bus,' there was a natural for the tendency was almost as half wide to veer to the pavement, left. After the collision the bus some distance proceeded the left along shoulder, truck, pushing finally came to rest ditch on the truck’s side highway. must conceded that reliance on some of evidence this is beset with danger, considered, as so many variables must be none the circumstances mentioned show necessarily that the bus to the left of the operated center of the highway at the time the collision. Yet when taken together and think unexplained, we rise above they suspicion conjec ture and an reasonably warrant inference of actionable negli gence.
In addition to the circumstances, foregoing the driver of the bus was not offered as a witness from which bemay reasonably inferred that his if testimony, would have been unfavorable to presented, the defendants. Robinson Duke Power Company, v. C.S. 48 S. E. 808, and cases therein cited. record does not dis (2d) close other witness to the collision. any surviving The testi there is silent as to whether mony any passengers bus, stated in his order refusing trial although Judge so-, But if we do not that there were passangers. trial new had of collision. knowledge they know what While difficulty does relieve proof plaintiff *6 this, of the burden of in a situation proof, yet like the Court should take a liberal of view the very tes in Herbert It so held v. W. timony. H. Smith Paper 260, 823, 243 Div. 276 Corporation, 820, Y. App. N. S. were the Court said: “In their efforts to administer justice, rule, the courts not a may approve circumstances here, shown that will a defendant whose permit automobile another, has concededly injured assume the attitude that he can, need if he explain, inflicted, the injury merely no because witness was at the instant of present the collision victim is and the dead. has been long recognized the- by of courts this state that circumstances such as these only evidence is slight required shift to the defendant the of burden explanation.” do not think
We the views herein expressed impinge manner any decisions of this Court in v. Leek New Lines, Express South C. 192 S. E. (2d) S. 459. that case there were tracks clearly indicating that the truck by the never defendant operated crossed the center of the vehicle road. involved in the Each collision came to a stop on its side of the A full road. explanation circum- stances, care, the exercise of due disclosing was given by the of truck. driver the defendant’s intimate as to the We opinion no a propriety directed verdict favor of the defendants after the Court has the benefit of the the driver testimony bus or any other that offered may witnesses defendants. Of course, it is the character impossible anticipate tes- be offered on timony may another trial the case. We are hold the circumstances sufficient to now only require defendants. an explanation from are orders reversed case is appealed a for new trial. remanded StukES, JJ., concur.
Eishburne J., C. Taylor, dissent. J., Baker, Baker, Chief Justice, dissenting. 7, 1949, action
This was commenced on October under Act Campbell’s recovery Thousand Fifty Tord Dollars actual for the death ($50,000.00) damages wrongful intestate, Iris Brock, a twelve appellant’s Shirley girl years age, against respondents, Five Thousand ($5,- Dollars of is 000.00) .sought, against the surety re- Carolina spondent, Casualty Company Burlington, N. C. a trial of below, the case in the Upon Court and at the con- clusion of appellant’s testimony, the made a respondents action, motion for a nonsuit of the which motion appellant’s was granted. for a noted motion new Appellant thereupon trial, which motion was at later date and resulted argued, *7 in an order the same. This refusing followed. appeal witnesses, of
During the cross-examination the appellant’s in four evidence exhibits of respondents placed consisting collision, the of road at the and a photographs of Therefore, the front of end the bus. if photograph the re- did care to offer spondents not further the testimony, proper However, motion have for a would been direction of verdict. their motion nonsuit was the equivalent, and the appel- lent no raises issue thereabout.
This case arose out of a a collision between Chevrolet light truck, in which intestate was appellant’s with her riding lather, killed, who also was a bus and of the respondent, Carolina The collision Stages. Scenic occurred aon highway known locally road, as the Valley Falls-Boiling Springs wide, which surface was a treated road about eighteen feet and was commonly known as a “black road. The bus top” travelling was towards Valley Falls and in a Spartanburg direction, southwesterly and the truck was in a travelling direction northeasterly towards At the time Boiling Springs. of the collision 8:15 8:30 on (about of Au- morning gust 1949) it was raining, foggy was and the road was The at slick. collision occurred or near the of a apex curve to the of the road direction right Valley Falls. There one-half curve, two and cent on grade was two to per curve, is cent to fourteen per a twelve it was limits and under normal within safe curve conditions .the foot of á was eight-tenths and highway program, curve than it on the outside higher road in the direction -on The shoulder inside. feet the curve six at beginning Falls .the Valley feet to a little less four than and narrowed gradually wide center, and then back into feet. On the outer got at the six direction of the curve edge (in Boiling Springs which the truck was travelling), direction the shoulder wider, off around feet wide it started six and as got about feet, went around the curve it was eight gradually increased width ten or eleven feet. The bus was travel- of the vhicles ing grade. down Each -damaged its side, in which taking direction each was The going. 10,- of the bus of its (exclusive weight passenger load) was lbs., the truck is shown weight precise record, record as a but is described light truck. raise the issue: Is appellant single exceptions which it can inferred there evidence from any reasonably that the bus was at time negligently operated accident, all of surrounding into consideration taking circumstances, and that a result of such conditions killed. intestate was negligence, appellant’s *8 of negligence specifications appellant’s complaint The are: in- to an by In the said bus allowing operated
“(a) and reckless driver. incompetent experienced, to be a In said bus driven at and causing the high “(b) road around rate of and a narrow along winding unsafe speed and when the vision was raining curve while it was sharp and rain, embankment mist and fog, high obscured of the trees, rights plaintiff’s utter disregard a clump said of those safety using highway. and intestate “ said, veer to its left over and across causing In to (c) on- a watch out for road without keeping of said the center or traffic when driver knew should have known coming- exercise care such carelessness and ordinary to would cause intestate and damage negligence plaintiff’s on said traveling others highway. In said bus to veer to causing its left
“(d) center (cid:127)road and strike the Chevrolet truck which in- plaintiff’s force, testate wás with riding great the said driving back more, some one hundred feet it over turning this intestate. killing- plaintiff’s In to
“(e) failing the bus equip good brakes, safe tires, and proper working windshield that the wiper; old, tires were worn and slick which made them unsafe because of their failure to the road grip on a wet, damp, foggy misty morning when its agents, servants and em- knew or ployees should have know that such failure en- the life dangered of this plaintiff’s intestate and others travel- ing the'.public highway. In
“(f) failing use the from Boiling Springs across Highway No. 176 near Dodd’s Hill which had been as the designated detour during the construction of Highway No. 9.
“(g) failing the bus keep under proper control so as to within a safe stop distance as provided by law.”
In the concluding paragraph of appellant’s printed brief under the designation, “Summary” there are nine recited as to which particulars presumably appellant contends that there some and that proof, reasonable inference of could respondents be drawn from We set testimony thereabout. forth these partic- ulars. 16, 1949, morning August date
“(a) collision, was and vision rainy foggy obscured. partially The truck in which intestate was inwas “(b) riding good n condition, been re-worked about three having completely and two tires new the back put months before the wreck wheels. *9 was travelling vehicles were on The road which
“(c) road slick slippery. “black known top” what is cent, curve to fourteen road had a twelve per The “(d) in the the debris shown collision took place (as where the the bus was the direction ; grade was down the road road.) truck was travel- in the direction the travelling grade up curve, the outer ; edge to ing pull the. of Boiling direction going Springs. that is— debris, one with the piece All the exception “(e) of the cen- metal, of the road to right was on side one the truck was that going; piece ter direction a steel from a of metal was brace bumper. The bus reached the shoulder the road on its
“(f) on side until left-hand side rolled that it struck culvert 3.7 feet where it rested with the wheels on its left side deep in the ditch. of the tires of the bus were Most slick and some
“(g) of them worn to the fabric. The truck was the bus on its
“(h) pushed by (the bus’) road rested; left-hand side where it tracks of the bus on the left shoulder of road in the di- it that rection which was showed ran going (the bus) 75 feet on the shoulder before coming about a final to' rest. truck in which intestate was “(i) riding was going side, right-hand its proceeding twenty twenty-five miles hour, 75 feet from where both seen about an when vehicles came to a stop.” abandoned her assume that appellant specification
We in which it is alleged (a) negligence an reckless incompe- being operated inexperienced, driver, no this effect. tent there offered to testimony alleged And for the establishment of the other specifications circumstan- wholly relied negligence, appellant do, if so had'the advised. evidence, she tial testimony if the consequences must also take But she inference of a reasonable is such adduced *10 '.371 there- be drawn tort-feasor cannot of alleged the the part from. related, now addition to the facts hereinbefore we the set forth the which testimony upon
briefly appellant death the to her intestate’s was caused relies prove in or more one of the respondents par- ticulars alleged. vehicles, is, bus, the truck and on a motor met described,
curve of the road above the of left front end the vehicles bashed in by the .from the respective impact them, collision between left wheel the front of the bus was badly damaged, not though down, broken completely and the tire collision, thereon deflated. the Following' the down road the but proceeded gradually the bearing of in highway front pushing thereof the truck until after the bus was off entirely paved portion the road and on the shoulder the left road direction which bus was being driven. When the vehicles stopped bus was moving, entirely off the high- way two its left wheels in the ditch side along road, shoulder to the and the front of the bus against cul- vert which ran under road; a side and the truck was turned over about the middle of the main road opposite the front portion the bus.
There was some debris found on the traveled side of the road which the truck should have on, been and opposite thereto shoulder right of the road in the direction in bus was travelling, there was found a piece of a brace. Of the metal, several bumper pieces scrap the debris on the left road side towards going Falls, Valley it like “looked have been the might transmission out truck, the little grill, gears things scattered along A road.” witness who was near the standing home saw the truck it was to his passing, 'the yard occurred at about where debris was collision if the road, 204 feet of within approximately then found bus. in collision with the came it it.is' assumed-that where the truck the time he saw that at testified witness This n .the road about side of at' its right then travelling this witness where course from-the-point miles hour. (Of per if it-was truck, accurately judge he could observed if he of the road even center to the right entirely of the truck were if all portions to ascertain trying- had been center.) n who saw witness, of the witness the father Another *11 collision, home and whose road to the just on the prior truck road,-testified in the part, 200 feet from or is about now quote: W'e wreck? to to scene this the go did you happen How
“Q. I heard the crash and ran the when out to barn A. I started there. back out noise, air, I hear hear? A. escaping did you What
“Q. n andthen crash sound. rumbling, a immediately following,, that air noise that you Immediately hearing spoke
“Q. do ? of, did you what but couldn’t anything the road see
A. I looked towards left -and the bus and saw my ran down few to steps come to a 10 feet before they stop. little truck about in relation was the little truck the bus when' Where to “Q. front, A. In the road first saw it? down being pushed you bus. the then, Mr. did do you What Solesbee? “Q.
[*] [*] to the road and saw “A. I ran almost people back dead and ran to house and got were apparently an ambulance.’.’ and called truck and went tire marks on the no skid or hard There were pavement road, and the debris above referred surfaced portion indication of the where vehicles were only to is point the left that to where wheels From point in collision. shoulder of the road it left entry showed feet, that where stopped against and from 54 was was -75 There is no testimony concerning the culvert feet. bus, of the- nor is there as to any testimony speed the truck or bus was at time of the collision whether center of middle of the road in their over the respective or directions. Of course one the other had to be over the line, over, center both were but it is con- possibly pure jecture say that the bus was over center line as just be to it would that the was say over. worn,
The tires the bus were the rear badly especially tires, the front in fair However, tires condition. being of the front left tire deflated in the photograph which was collision shows tread. very good The tire front wheel is not shown also be noted may picture. that the witness who- examined the tires on the bus for the to their admitted condition he testifying purpose was did not even notice front wheel bent badly down, or broken this condition most was obvious although casual observer. The truck intestate appellant’s riding tires, condition and good equipped good fwo of them new. practically *12 curve in
The the one, road not a dangerous and ve- hicles from- either approaching be, direction could with the care, for a observed distance slightest to avoid col- ample lisions. is
There in the record nothing which would indicate that the the driver of bus was not available the appellant witness, a was an he surely eye to what witness caused there is no collision. that no Again, the showing passenger bus could on the Court as to the enlighten cause of the collision, or that such passenger passengers not avail- The able. elected to her appellant apparently rest case on the related, and hereinbefore this course she circumstances do, be such action but will bound on her had n part. 374 Court is: Did the testimony before the question case to submission require
behalf appellant the jury? in this will mind the question we passing upon keep nonsuit, for
established law in motions passing tort-feasor, and direction of in favor verdict an alleged testimony and all reasonable inferences to be drawn therefrom must be viewed most favorable to the light As was stated Mr. Oxner in plaintiff. writing Justice Co., in Moody Court v. Dillon 210 opinion C. S. 458, 201, 203, 43 from S. E. (2d) quoting Shields v. al., Truck 437, 19, Chevrolet et C. 12 195 S. S. E. (2d) 23, “In whether Court erred determining below in over- for a motions nonsuit and a ruling appellant’s directed ver- dict, all reasonable testimony inferences to be drawn must therefrom be viewed most light favorable to is the care”, “want of due respondent. ‘Negligence and is a mixed of law question and fact. In generally determining inferable, is all of if negligence the surrounding conditions taken consideration, into circumstances must and if an¿ can be drawn from all reasonable inference facts and conditions at the circumstances and time prevailing that one therewith did not ob- charged alleged care, it becomes a question then ordinary jury serve ” upon.’ to pass that no inference law this the established State It is alleged an tort-feasor arises from of negligence accident or injury. mere fact an for her relies to a extent large cites and The appellant case of v. Beard-Laney, in this case position Eickhoff 1010, 153, R. 141 A. Inc., C. (2d) E. L. S. S. from differentiates it the one easily facts that case but case, was an occu In that consideration. the plaintiff under *13 being which was operated automobile her husband’s of pant center of a in the highway, of paved him to by struck when it was without day, a clear of afternoon early defendant, from behind a truck gasoline warning by The automobile was same direction. travelling hour, due to to miles thirty driven at about twenty-five per to for some trouble, and been limited this speed motor had time the accident. collision was considerable to prior from force that the automobile was thrown such point hundred and twelve feet into an field adjacent of contact one one fence it knocked down post unusually large where to size -and came and astride The truck and rest another. up to the left after trailer went about same dis- impact in a tance and landed ditch. The nearby complaint alleged many specifications negligence, opinion specifically excessive failure mentioning look- speed, keep proper out, control, lack of failure to turn to the left order to avoid the collision insufficient It brakes. was obvious from the circumstances that the servant of the owner driver (the thereof) negligent particulars A stated. the case will reading disclose that no brakes collision, until instant of the and therefore applied the distance traveled the truck after the collision not considered as evidence of insufficient brakes. be may at emphasized this that the respondents
are here cannot shown contending negligence alone, circumstantial evidence but it is their position the facts and circumstances testified to the trial of the case are not sufficient raise reasonable inference of neg- on their and that a ligence finding there- part, from be based on necessarily conjecture would and specu- lation. of the stated light and contention of position and of law hereinbefore governing set respondents, forth, do not find to refer to the other cita- necessary we tions authority by appellant. find, cited,
Of the cases or which we have been able to Lines, 527, v. New Express 192 C. South S. E. Leek S. under dis- 459, 462, most case is the apposite (2d) a heavily morning February, a foggy On cussion. and an automobile defendant operated truck of the loaded *14 376- 1- intestate collided on U. Highw-ay.-No.
by the-plaintiff’s S. in The vehicles were Lexington travelling oppo- County. (cid:127) driven and oc directions. The car of the deceased was site him The truck defendant’s: by alone. was cupied operated by servant, An and who was also alone. action for-the- .agent was the defendant recovery damages brought against deceased, of the the administrator of the estate under Lord Act. While there were several Campbell’s specifications the case was tried negligence, and allegation theory that the truck was driven to its of the center line being of the- and into the automobile by the occupied The trial in a decedent. resulted verdict for the for plaintiff actual The case was damages. to this appealed Court that the grounds trial Court erred de- refusing grant nonsuit, for for fendant’s motions and direction .of verdict in favor of the defendant for that there was a total failure of evidence to show actionable tending negligence on the of the defendant. The truck driver was the sur- only accident, to- the viving eyewitness and, as stated in the Court, of this for the opinion case, of his proof the plain- tiff was confined to necessarily circumstantial evidence.
A witness T. plaintiff (J. testified Miller) that on the accident he morning his car en driving route Columbia; that he turned into the highway shortly before 6:30 o’clock weather (the cold and and foggy), saw car, the tail light another which it later developed the car deceased, driven also headed towards Colum- bia; that both cars were- at travelling about 30 miles per hour, and that the six throughout miles he followed this car, he and until lost of it a sight few seconds it before col- truck, lided with defendant’s its tail light showed it to be road; center that just before the of the accident the grade road place rises over a low hill, and then curved to the left the direction in which the car that he lost travelling; sight of'the decedent’s tail over hill car it the -crest when passed light the-curve;'that he did not see until again entered upon had truck at a about after it collided defendant’s ;(cid:127) one hill close enough-, hundred that he was yards beyond collision, to hear the crash of he came within about of where the vehicles-came seventy-five yards together, defendant’s truck the' about moving slowly apparently him; met that when he stop, reached the .passed thereafter, scene of the accident a few seconds he found *15 the car of decedent the on its extreme upright right-hand ditch, side of the highway, practically with its left front wheel still on the road; when paved portion the rear light the car of the deceased from disappeared hill, his view over the brow of the the car was on the right- hand side of the center of the highway.
This was testimony corroborated another by witness (J. H. who was Miller) as a riding in the car passenger follow- the car of ing the deceased.
Another witness resided who about 200 from yards the scene of the accident corroborated the other witnesses as to the position the decedent’s car immediately the following accident, and also testified as to the physical condition of the automobile truck, and the and the angle at which they came together as evidenced by damages thereto. He tes- window, tified that the from glass the left-hand by driver’s (cid:127) seat had been broken automobile, out of the that the glass had been broken from the window the left-hand side by truck, driver’s seat on the and that the rear view mirror on that side was broken and back. pressed He further tes- tified that while fragments glass were scattered all over road, of it majority was from one and a half to three feet the center over of the highway automobile’s side of the road. The was from damp and there fog, or no marks tracks distinguishable any kind vehicle, he looked for such although reference to either tracks marks. The main force of blow delivered automobile t.o by this witness and as by photographs, testified to shown to the middle of the left-hand side by directed seat, side, in the door on that crushing driver’s partially conceded that this portion' top. portion the automobile was the left hand struck front corner of the van which the cab of the The beyond truck. projected left front fender truck was dented on its outside edge, fender over the and that wheel was in. portion crushed for the also testimony showed that the plaintiff de- car cedent’s travelling curve, outside of the that the truck was travelling the inside of upon the curve. This is the situation which the precise truck in which intestate was and the appellant’s riding, bus weré travelling at the time their collision on a curve. from quote We opinion, Leek authored Mr. Jus-
tice Fishburne: “The to recover on circumstantial evidence for death from resulting another’s negligence depends upon .reasonable connection such logical proof establishes be- act the death and the negligent alleged tween to have caused it. It is incumbent absence plaintiff, of direct *16 evidence, to show the existence of such circumstances as would the inference that the justify injury caused the defendant, death was due to of wrongful the act the not leave the question mere speculation conjecture. to facts circumstances shown be should reckoned with and such of conclusions de- light ordinary experience common sense dictates.” duced therefrom as authori- (Citing ties.) evidence, view the of T. testimony
“As we Miller J. Miller, and H. which is as pointed respondent J. that Russell car was on its of the show tending collision, of has no center of the at the instant pro- of car for distance bative value. had of the They sight lost 100 or more Therefore before collision occurred. yards in case from which to determine that' is left the plaintiff’s all center the collision on its left of the when that the was truck occurred, broken concerning glass, is the evidence
379 of the side rest on its own car fact came that highway. more than something show
“The was bound to plaintiff for the decedent’s responsible the defendant possibly burden was him to a verdict. The death, in to entitle order fact, evidence of him, in the absence positive upon the existence such only possible responsibility, to show a reason- circumstances which would furnish but proof fact ultimate able basis for the inference by jury of the de- the wrongful that the death was caused act the road. side wrong fendant its truck driving this, C. And our he has not done.” 192 opinion, S. 462. (2d) S. E.
As is obvious from the quoted portions opinion case, the de- judgment damages against Leek reversed on the fendant was that the had ground plaintiff failed to evidence from which could reason- produce any inferred that his intestate’s death result of ably defendant. from the We Order of the learned quote approval trial the motion of for a refusing new trial. Judge appellant fixed the one of witnesses
“No plaintiff’s impact vehicles, between these two there was although testimony debris, the major to the location of which was portion left-hand side of the which the bus highway along however, there some being, debris on the travelling, The bus was side of the bus. proceeding toward right-hand Falls, and the toward Boiling Springs. The bus Valley collision, a distance more than after the travelled to rest on its left-hand side finally coming down a grade, feet afforded culvert which passage road a small against *17 There road. an intersection main from into the the bus were worn that the tires on effect evidence the toas evidence There was slick. no were that they extent the the collision. of the point vehicle at of either the speed of force impact major showed evidence physical 380. on left front of each. The
the vehicles to have been under that vehicle. of the bus was buckled front wheel “I of given have most careful consideration and review Counsel, testimony and to the of both on argument trial, I motion for for a nonsuit on motion new am convinced that the has no actionable plaintiff proved the road was slick virtue of negligence. though Even rainfall, was no evidence whatever there that bus skidded, so as to constitute the slickness of the tires a factor cause of about this proximate bringing tragedy. fact, aAs matter of the course which bus followed after the collision such negatives any as theory skidding, and contrary, shows it all proceeded wheels line course, in a across slightly diagonal the highway, which it to the brought it where There point stopped. were skid no marks or other evidences sliding which one nor- would if mally there skidding and this expect was true even several though witnesses testified they reached the scene a few moments after the accident. is a matter of common that debris from knowledge wrecked vehicles bemay found indiscriminately that no reliance can be placed such determinative of the point As a impact. matter fact, when two vehicles are in collision the debris from fall their collision here or there may without regard to the actual of contact.”
Even “the applying last clear doctrine, chance” and as- that the driver suming bus observed that the truck in intestate appellant’s was riding was approaching had crossed over center the highway to the bus’ side road, would be mere it speculation the truck was at so driven a time when the bus could have stopped before in collision therewith. Nor can coming we say duty wet dirt heavy go shoulder, neces- soft, collision, in order to avoid a sarily such because action driver the bus have would endangered thereqn, to whom lives of the the respondents passengers due the care. highest degree *18 wheel front left collision in which the Following the tire or badly damaged, broken down the bus was bus air' on the brakes thereon deflated (and, probably the. to veer to natural for the bus it was but useless), rendered efforts use all of his only thereof could left and the driver this, he did an apparently in passengers. protecting job. expert
The record discloses the debris found on the truck’s that of the road came from the truck. to the side The damage side and to the front left side of front left truck could as well said to have resulted just bus be from the truck in over center of the road the direction which being so, if the debris therefrom still travelling, would side.of the road. have been truck’s As trial stated his order Judge a new refusing trial, there is indication whatsoever that the no bus skidded. contends no that skid marks visible appellant were reason the tread on the rear tires worn off, but there no skid marks visible from the well on the truck treaded tires when it was down the pushed for a certainly of the time when the highway, portion cross-wise the No highway. reasonable inference condition of the worn tires on can be drawn the bus to the accident. contributed in anywise for the we have child who great sympathy While lost her is evidence in life, hold theTe any record yet from be inference can drawn that a reasonable respond- or that the negligent, anywise ents were cause of the death of was the proximate the respondents field into the take us intestate, necessarily would appellant’s conjecture. of surmise affirmed. from should
The orders appealed concurs. J., Taylor,