126 S.E. 488 | S.C. | 1925
April 3, 1925. The opinion of the Court was delivered by "The respondent brought this action for the recovery of actual and punitive damages for personal injuries to him resulting from being run down by an automobile driven by the appellant. The respondent was riding with one D.C. Mason in Mason's automobile upon an improved road, being part of the state highway system, in Clarendon county, when they reached another automobile which was disabled, and Mason stopped his car beyond the disabled car and on his right of the road, all witnesses agreeing that his car was to its right of the center of the road. The respondent and Mason offered to help the man in charge of the disabled car who was working on same and attempting to get it started. The disabled car was on its right of the road, according to all *364 witnesses, and not opposite Manson's car, there being room to drive between the two, as several who testified did drive. The respondent was assisting in the work done upon the disabled car, and was either in the act of getting out of it, or actually out of it, as he testified, when the appellant drove his automobile from the rear of the disabled car into it and into the respondent, and respondent was seriously injured by the collision, both of his legs being fractured, one being so badly injured that, according to the testimony of the surgeon, he will probably never regain the use of it. The accident occurred just as it was beginning to get dark, and Mason had just turned on his lights as a precaution, and when he saw appellant approaching he turned his lights from bright to dim. These lights, appellant contended, blinded him and he was able to see nothing, but thought that he was passing a moving car, and ran on into the disabled car and into respondent, without having previously seen it or him. The speed at which appellant was driving is disputed, witnesses for the plaintiff testifying that the rate of speed was excessive and above the statutory speed limit, but appellant himself testified that he was driving not over 20 miles an hour. Appellant testified that he could easily have stopped his car between the point where he was first blinded and the point where he struck the disabled car and respondent."
The verdict was for the plaintiff, and from the judgment based upon this verdict the defendant appealed.
One of the specifications of negligence was that the defendant was exceeding the speed limit fixed by statute. The presiding judge charged the jury that, if the defendant was running his car at an unlawful rate of speed, then it was negligence per se, and contributory negligence was not an available defense to negligence per se.
We have been referred to no authority, and we know of none to sustain that charge. It is true the respondent denies that his Honor so charged. The charge, to say the least of it, was confusing, and the jury may have been misled. This *365 assignment of error is sustained. This disposes of exceptions 1 and 2.
Exceptions third, fourth, and fifth do not comply with the rule, in that they require reference to other parts of the case to make out the error complained of; but this is harmless here, inasmuch as these three exceptions, and also the sixth exception, complain of errors peculiar to that trial.
The judgment appealed from is reversed.
MESSRS. JUSTICES WATTS and MARION concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE COTHRAN did not participate.
