Sims, Admr. v. Eleazer , 116 S.C. 41 ( 1921 )

April 13, 1921. The opinion of the Court was delivered by This was an action for damages for the negligent, willful, and wanton killing of the plaintiff's intestate by an automobile driven by the defendants. The cause was tried before his Honor, Judge Edward McIver, and a jury at the February term of Court, 1920, for Richland county, and resulted in a verdict in favor of the defendants, upon which judgment was entered, and plaintiff appeals.

Exceptions 1, 7 and 9 raise the contention that his Honor was in error in not directing a verdict for the plaintiff as asked for; that from all the evidence adduced at the trial no inference could be drawn of unavoidable accident, or no negligence on the part of the defendant, or of contributory negligence on the part of plaintiff's intestate.

The plaintiff's contention is that the automobile, at the time of the accident, was on the left side of the road, where it had no right to be, under the statute law of this State defining how the traveling public shall travel on the highways of the State, and that the automobile was not under control.

The wording of the statute does not require that in meeting and passing another a vehicle shall keep to the right. The statute does not contemplate that at all times a person traveling shall strictly comply with the terms of the statute. A person traveling a highway has the right to travel on either side of the road when no one is coming in the opposite direction, and he does not interfere with the traveling of another coming from the opposite direction, and in no manner impedes or obstructs the rights of others coming from an opposite direction. If he is meeting and passing, he must bear to the right and comply with the terms of the statute. In passing any one in front of him going in the same direction, he must pass him on the left, giving the one in front of him the benefit of bearing to the right. Any one passing him going in the same direction must pass on his left.

While these are the general rules that must be observed, yet, if any one, even though violating the rules of traffic, is about to be injured, in person or property, by a collision between them, he must exercise due care, such as an ordinary prudent person would exercise under similar circumstances, to avoid injury to any one, even though he violate the traffic rules, provided in so doing he does not injure any one being where they have a right to be under the law regulating traveling.

If a person traveling in the manner provided for by law meets any one traveling in a manner in violation of the statute and sees a collision is inevitable, unless he violates the rule, and by a violation of it he can avoid a collision without danger to himself or property he must do so, even though he technically violate the law. He must exercise the ordinary instincts of human nature to avoid being injured or inflicting injury on another. He must exercise the ordinary care that an ordinary person would exercise under similar circumstances of the case.

A person, being on the wrong side of the road, can not, as a matter of law, be injured by one traveling on the right side of the road. This only raises a presumption in favor of the man traveling on the right side of the road, and being where he had a right to be that he did not intend to injure the other. Neither can it be said that a person, being on the wrong side of the road, and injuring another, as a matter of law is absolutely liable. While it raises a strong presumption of law that he is, it does not as a matter of law make him absolutely liable. It depends upon all of the facts and circumstances of the situation at that particular time, the positions of each, whether on the right or wrong side of the road, whether the circumstances are capable of explanation. There were circumstances detailed in evidence explanatory of the situation at the time of the unfortunate killing, of the automobile being on the wrong side of the road, and that it was under control, sufficient to carry the case to the jury, and we see no error in his Honor's failing to direct for the plaintiff, and these exceptions are overruled.

Exceptions 2, 3, and 4 are overruled. His Honor's charge as a whole, is a complete exposition of the law applicable to the case, and nowhere did he commit any error that was at all prejudicial to the appellant.

Exception 5 complains of error in charging the law of contributory negligence. The answer set it up as a defense. There was testimony along that line, and it was a proper issue to be left to the jury. We see no error as complained of, and these exceptions are overruled.

Exceptions 6 and 8 are overruled for the reasons stated by his Honor. All exceptions are overruled, and judgment affirmed.

MR. JUSTICE FRASER: I dissented in Walker v. Lee, 115 concur.

Mr. JUSTICE FRASER: I dissented in Walker v. Lee, 115 S.C. 547, 106 S.E. 682, but this case goes further than Walker v. Lee, and I dissent again.