108 S.E. 919 | S.C. | 1921
Lead Opinion
October 10, 1921. The opinion of the Court was delivered by Action for $20,000.00 damages on account of personal injuries alleged to have been sustained by the plaintiff in being struck by an automobile of the defendant at Rock Hill, S.C. February 18, 1919. The case was tried at York, S.C. at December term, 1920, before Judge McIver and a jury. At the close of the testimony for the plaintiff the Circuit Judge ordered a nonsuit, and from the judgment entered thereon the plaintiff appeals.
The plaintiff, a school girl, was on her way to school, and while upon the street near the school was run over by an automobile of the defendant, operated by one Frank Hall. The circumstances of the collision are very meagerly detailed in the testimony, but there was sufficient evidence of the negligent operation of the car to require the submission of the issue to the jury, and the order of nonsuit was erroneous.
The witness, Pressly, testified that he was walking on the north side of East Main Street, and was in the act of crossing Reid Street, which intersects East Main; that he was *312 with a young man, Sam Fant; that Sam Fant exclaimed, "There goes Frank's car," and immediately thereafter, "Watch out there; he is going to hit that little girl." Pressly looked around, the car was out of sight, and the little girl was lying on the ground. If Fant could see the danger, why could Hall have not seen it? If the car was out of sight when Pressly looked around, its speed was a question of fact for the jury. The fact that Hall did not stop means either that he did not see the little girl (upon the presumption of his humane feelings), or that he was going at such a speed on a wet pavement that he could not stop in time to avoid the collision, all of which were questions for the jury to decide. It was also for them to decide whether, under the circumstances, within the danger zone which should surround the approach to a public school, the driver exercised that degree of care which was required of him. The wet street, the presence of school children, the unobstructed view, were elements which the jury had the right to consider in determining the presence or absence of negligence.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.
Dissenting Opinion
For the reasons assigned by his Honor, Judge McIver, in granting nonsuit, I think that the exceptions should be overruled and the judgment affirmed. *313
