390 F2d 658 Thomas v. M Bruton M III

390 F.2d 658

Dorcas Crater THOMAS, Administratrix of the Estate of Kizer
Ronald Thomas, Deceased, Appellant,
Allen M. BRUTON, Jr., and Allen M. Bruton, III, Appellees.

No. 11820.

United States Court of Appeals Fourth Circuit.

Argued Feb. 9, 1968.
Decided Feb. 28, 1968.

Henry H. Edens, Columbia, S.C. (Arch K. Schoch, High Point, N.C., on brief), for appellant.

Joseph L. Nettles, Columbia, S.C., for appellees.

Before SOBELOFF, CRAVEN and BUTZNER, Circuit Judges.


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Unable to conclude that the District Court erred in finding the defendant free of negligence, we affirm the judgment below.


This is a diversity action brought in the District Court of South Carolina by the administratrix of Kizer Ronald Thomas, an 18-year-old student, who was killed in an accident on Ocean Boulevard in the popular resort town of Ocean Drive, S.C. During the 1964 Easter vacation, the decedent and a number of fellow students were engaged in 'horseplay' in a motel parking area, close to the edge of the highway. Breaking suddenly from the group, Thomas emerged into the right-hand traffic lane and ran into the side of defendant's plumbing truck. As a result of injuries sustained, the youth died within a few hours.


There is no claim that defendant was speeding. Plaintiff's theory is that the defendant, who at a distance of several hundred feet became aware of the milling students near the side of the road, should not only have slowed, as he admittedly did, but should have taken additional precautions such as coming to a complete stop, moving to the unoccupied left-hand lane near the median strip, or sounding his horn. The defendant's contention is that although he saw the boys on the parking lot, he did not foresee and could not have foreseen that someone would dart out into the highway and come into contact with the truck. In the defendant's behalf, a policeman testified that he was traveling along the highway immediately ahead of the defendant and observed nothing to indicate the imminence of anyone's sudden rush into the road.


The conflicting inferences suggested by the parties presented a pure question of fact for the resolution of the District Judge, who tried the case without a jury. We perceive no ground for disturbing the judgment.