Bennett v. Peeler , 258 S.C. 540 ( 1972 )

Brailsford, Justice:

While I agree that the only reasonable inference from the evidence is that decedent was guilty of negligence in failing to yield the right-of-way to the approaching vehicle, in my judgment, his failure to do so does not conclusively convict him of recklessness or willfulness. The only testimony on the point is that before undertaking to cross the eastbound lanes, he stopped and looked toward the west from a point at which his view of the approaching Oldsmobile may have been blocked by the parked beer truck. On this record, his fault in not looking again before entering the inside lane may be attributed to inadvertence at least as reasonably as it may to reckless misconduct. But if after clearing the obstruction to his vision he did see the approaching car, his failure to yield may have been due to mis judgment as to speed or distance, or both, rather than to recklessness. Of course, his failure to yield the right-of-way was evidence of willfulness. However, he may not soundly be barred of recovery on this ground except by the verdict of a jury.

This opinion, written in dissent, has, by concurrence of the majority, become the judgment of the Court. The order appealed from is reversed and the case is remanded to the circuit court for consideration of respondent’s alternative motion for a new trial.

Reversed and remanded.

Moss, C. J., and Lewis and Bussey, JJ., concur. Littlejohn, J., dissents.