Brown v. George

294 S.E.2d 35, 278 S.C. 183, 1982 S.C. LEXIS 388

• Court: Supreme Court of South Carolina
• Decided: July 7, 1982
• Docket: 21751
• Status: Published

Opinions

Harwell, Justice:

Respondent initiated this negligence action for injuries sustained when he was struck by an automobile while attempting to cross a highway. Appellant Mark George was driving the vehicle under the direction of Appellant Barbara George. A jury returned a $15,000 verdict for respondent. Appellants contend the denial of their motion for a judgment n.o.v., or in the alternative for a new trial, was error. We agree, reverse, and remand for entry of judgment for appellants.

The accident occurred in front of Boney’s Liquor Store on Highway 21 near Ridgeway, South Carolina, around 10:00 a.m. on March 4,1977. Respondent had exited from a truck parked on the shoulder of the southbound lane and was attempting to cross the highway to enter the liquor store. Appellants, traveling in the northbound lane about 50 or 55 miles per hour, had just capped a hill about 250 yards south of the liquor store when they first saw respondent in the southbound lane. Appellant Mark George testified that he immediately put on brakes and sounded the horn and that respondent glanced in the car’s direction.

Respondent had begun drinking at home around 4:00 that morning. He and one of his companions then visited a liquor store in Blythewood around 9:30 a.m. When the accident occurred he was “good and high”, but was not so incapacitated that he could not walk. Respondent testified he was not drunk. Respondent’s companion, who had stayed in the truck, testified he saw respondent walk in front of appellants’ sliding car. The right front of appellants’ car struck respondent.

Appellants first allege that the trial judge erred in charging the last clear chance doctrine. We agree. The doctrine is not applicable in every case where the defendant alleges the plaintiff was contributorily negligent. It applies only where the antecedent negligence of the plaintiff has become remote in the chain of causation and a mere condition of his injury. Smith v. Blackwell, 250 S. C. 170, 156 S. E. (2d) 867 (1967); Hopkins v. Reynolds 243 S. C. 568, 135 S. E. (2d) 75 (1964); Seay v. Southern Ry., 205 S. C. 162, 31 S. E. (2d) 133 (1944). It does not apply where the plaintiff’s act combines and concurs with the defendant’s act as a proximate cause of the injury. The evidence indicates that respondent was guilty of concurring negligence which continued until the time of impact. Respondent testified that he proceeded immediately onto the highway after looking both ways. Even after the appellants’ automobile could or should have been seen, respondent continued to walk from a place of safety into the path of the oncoming vehicle. The emergency arose so suddenly that there was no time for appellants to avoid the accident. When the emergency arises so suddenly that the defendant has no time to avert the accident, the last clear chance doctrine does not apply. Durant v. Stuckey, 221 S. C. 342, 70 S. E. (2d) 473 (1952). Therefore, the trial court erred in charging the doctrine.

Even though we have determined the case should be reversed because of the charge on last clear chance, we also address another erroneous portion of the jury instructions. That portion states:

I further charge you, ladies and gentlemen, that it is the duty of a pedestrian before attempting to cross a highway to see that the way is clear. The duty is not merely of looking but one of observation. The pedestrian must look in such an intelligent and careful manner as to enable him to see that what a person of his age, intelligence and condition in the exercise of ordinary care and caution for the safety of himself and others, could have seen under the circumstances. (Emphasis added.)

Immediately following the charge, appellants’ attorney excepted to the words “and condition,” alleging that this charge would give the jury an opportunity to consider whatever an intoxicated person would have done under the circumstances. The trial judge acknowledged that if the words “and condition” had been added, it was a mistake. However, he made no effort to correct the error. Appellants’ attorney requested the appropriate charge on a pedestrian’s duty when crossing a highway as stated in Johnson v. Finney, 246 S. C. 366, 143 S. E. (2d) 722 (1965):

[A] pedestrian crossing the highway is required to use ordinary care for his own safety, that is, such care as a reasonably prudent person would use under the same or similar circumstances. If a pedestrian crossing the highway neglects to exercise a care for his own safety that a reasonably prudent person would use, he is guilty of negligence which would bar recovery for any injuries that he may sustain when struck by a motorist, if such negligence proximately contributes to such.

By allowing the jury to consider respondent’s condition, the trial court in effect charged a standard of a reasonably prudent intoxicated person. We conclude this erroneous instruction was prejudicial to appellants.

Reversed and remanded for entry of judgment under our Rule 27.

Littlejohn and Gregory, JJ., concur. Lewis, C. J., and Ness, J., dissent.