August 27, 1929. The opinion of the Court was delivered by
MR. CHIEF JUSTICE WATTS.
For the reasons assigned by his Honor, Judge Townsend, and under the additional case of Langford v. Atlantic Coast Line R. Co., 148 S.C. 510, 146 S.E., 417, and case therein cited it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER and CARTER concur.
JUDGE'S ORDER
This cause comes before me on a demurrer to the complaint for failure to state facts sufficient to constitute a cause of action, in that it alleges no negligence on the part of defendant, it not being negligence under the law for a truck to be stopped in the road where it can be seen by travelers thereon.
While it is not negligence per se to stop and park an automobile in the middle of a highway, a person there stopping or parking an automobile should use such ordinary care for the rights of other travelers on the road as is consistent with their safety. The complaint alleges that the defendant both negligently and willfully stopped its automobile in the center of traffic on a steep and sharp descent, where it was hid from the view of an approaching automobilist, in a much used highway. If the plaintiff should prove such facts, and that the defendant knew that the parked automobile was obscured from the view of the traveling public, more than one inference might be drawn by the jury as to negligence and willfulness. American Express Co. v. Terry, 126 Md., 254, 94 A., 1026, Ann. Cas., 1917-C, 650; Lipford v. Gen. Road Drainage Co., 118 S.C. 358, 110 S.E., 405.
The issues as to proximate cause and contributory negligence should be left to the jury. Bowers v. Carolina Public Service Co., 148 S.C. 161, 145 S.E., 790.
It is therefore ordered that the demurrer to the complaint be, and is hereby, overruled, with leave to the defendant to serve an answer to the complaint within 20 days.