Faircloth v. Wahab

210 S.E.2d 592, 263 S.C. 348, 1974 S.C. LEXIS 250

• Court: Supreme Court of South Carolina
• Decided: December 6, 1974
• Docket: 19922
• Status: Published

Opinions

Brailsford, Justice:

This action for personal injuries arises from an intersectional collision between an automobile driven by the seventeen - year - old defendant and a motor - driven cycle (mini-bike) operated by the nine-year-old plaintiff. After depositions of the two parties had been taken, the court, concluding that there was no evidence of negligence on defendant’s part and none that he had a last clear chance to avoid injuring plaintiff, whose cause of action was stated in terms of this doctrine, granted defendant’s motion for summary judgment.

The plaintiff testified that he failed to heed the stop sign at the intersection because sand on the roadway prevented his doing so. The defendant testified that his vision to the right, from whence the child came, was obstructed by a brush pile about thirty feet from the intersection and that he did not see the child until both parties were about to enter the intersection. It is inferable that the parties approached the collision point at approximately the same speed, 20 to 25 miles per hour, and different inferences may be drawn as to the opportunity of each to observe the approach of the other.

Viewed in a light favorable to plaintiff, the evidence is susceptible of the inference that by the exercise of due care, the defendant should have seen the nine-year-old plaintiff on a mini-bike, approaching the intersection 20 or 25 miles per hour, in time to have avoided injuring him. If he did or should have done so, it is for the jury to say whether due care under the circumstances required him to take precautions while there was yet time to avoid the accident which ensued. If these questions should be resolved in his favor, plaintiff would be entitled to recover without resort to the doctrine of last clear chance,

* unless the jury should find that the legal presumption protecting one of his years from the bar of the defense of contributory negligence had been removed by the evidence. It follows that plaintiff, by casting his complaint on the doctrine of last chance, may have alleged more than he must prove to establish submissible issues.

In our view, genuine issues of fact as to defendant’s actionable negligence and plaintiff’s capacity for exercising that degree of judgment and discretion requisite to charge him with contributory negligence, required denial of the motion for summary judgment.

The judgment appealed from is reversed and the case remanded to the circuit court, where plaintiff may move for amendment of the complaint if he be so advised.

Reversed and remanded.

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

The only office of which is to relieve a plaintiff of the consequences of his own antecedent negligence.