Whaley v. Ostendorff
73 S.E. 186
S.C.
1911
Check Treatment

December 29, 1911. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through the negligence and reckless misconduct of the defendants, in running an automobile, whereby the plaintiff was injured, while he was upon the crossing of two of the public streets in the city of Charleston.

The complaint alleges, that at the time the plaintiff was struck by the said automobile, it was being driven at a greater rate of speed than ten miles an hour, in violation of an ordinance of the city of Charleston, prohibiting the running of automobiles, at a greater rate of speed than ten miles an hour, along the streets of Charleston, and four miles an hour, where said streets cross each other. *Page 283

The jury rendered a verdict in favor of the defendants, and the plaintiff appealed.

The exceptions assign error on the part of his Honor, the presiding Judge, in charging the jury, that "to violate a city ordinance regulating the running of an automobile, is in itself prima facie evidence of negligence, it is not conclusive, it is only prima facie."

The charge was not in accord with the doctrine announced in Dyson v. Ry., 83 S.C. 354, 65 S.E. 344; Lindler v. Ry.,84 S.C. 336, 66 S.E. 995, and Butler v. Ry., infra 273. When evidence of negligence is only prima facie, it is subject to rebuttal, but when there is negligence per se, it is conclusive of that question. The fact that there is negligenceper se, does not, however, tend to show, that such negligence is actionable. The question whether negligence is actionable, depends upon the further question, whether such negligence was the direct and proximate cause of the injury.

The exceptions raising this question are sustained.

Under this view of the case it will not be necessary to consider the other exceptions.

Judgment reversed and new trial granted.