(dissenting) :
Not being in accord with the opinion of Mr. Justice Littlejohn, which I shall hereafter refer to, simply as the opinion, I most respectfully dissent. I disagree not only with his analysis of the evidence in several particulars, and the inferences that he draws therefrom, but with legal propositions stated and/or inherent in the opinion.
For the purposes of this dissent, I shall assume that both Dixon and Roberts were under the influence of intoxicating liquors and that Dixon knew of Roberts’ condition. The question still remains whether such misconduct in this respect was a contributing proximate cause of the collision and resultant death of these two parties.
The point of impact between the vehicles is rather clearly established as being o,n Roberts’ side of the highway, four feet two inches from the center line, and at a point to the north of the northern entrance or driveway to the truck stop. A cardinal factual issue in the case, bearing on the issue of proximate cause, is precisely how far north of this driveway the impact occurred. No plat or diagram is in the *87record throwing any light on this particular point. While the photographs clearly show all the physical evidence of the impact to be in Roberts’ lane of travel, they throw little, if any, light on the cardinal question of how far north of the driveway the impact occurred, since all photographs were taken either looking north or south on the highway. Fo,r the most part, witnesses, as to this precise point estimated distances and some of the key witnesses testified in conjunction with diagrams drawn on blackboards, with the result that much qf their testimony is far from intelligible in the absence of such diagrams.
Some time after the jury had retired for deliberation, the court was requested by the jury to allow it to have the blackboards containing these diagrams in the jury room, and, with the permission of all counsel, the court granted the request. A reasonable inference is that the jury needed these diagrams to enable it to understand the testimony of the witnesses and to determine what is here the issue, proximate cause. Under these circumstances, the diagrams, I think, in effect became a part of the evidence in the case, although they were not formally introduced as such.
The rule of law under which this court occasionally decides, as a matter of law, what is normally a jury issue clearly contemplates, I think, that this court have before it all of the evidence before attempting to decide that the evidence is susceptible of only one reasonable inference.
The foregoing alone should require a different result than that reached in the opinion. Aside therefrom, however, considering only the evidence which is in the record, there is, in my view, clearly more than o.ne reasonable inference on the issue of proximate cause.
It is well established that if inferences reasonably deducible from the evidence are doubtful or if they tend to show both parties guilty of negligence or willfulness, and there may be a fair difference of opinion as to whose act produced the injury complained of, proximate cause is for the jury and not for the court. See cases collected in West’s South Carolina Digest, Negligence, 136(25).
*88Broughten, the driver of the Weir vehicle, contended that he was approximately fifty feet from the northern driveway when Roberts’ vehicle emerged therefrom and that he had to swerve across the highway in an effort to avoid the collision. While Broughten contends a somewhat lower speed, there was evidence that he was proceeding at a rate as high as sixty-five miles an hour, in approaching the truck stop where he knew there was a lot of in and out traffic on Friday night. Contrary to his contention, as will be hereinafter pointed o,ut, there is evidence tending to prove that the point of impact was approximately one hundred feet north of the driveway and that to the north of the point of impact skid marks to the extent of fifty-six feet were laid down by the Weir vehicle in Roberts’ lane qf travel. Additionally, Broughten testified that at a speed of forty-five miles an hour it would take thirty-five or more feet for the brakes to take effect after application. When we consider Broughten’s reaction time and the collective distances above mentioned, it would seem obvious that Broughten was occupying Roberts’ lane of travel for at least two hundred feet before he got to the driveway entrance.
There is, in my view, nothing conjectural about the testimony of Mrs. Small who went out the next morning and looked at the skid marks and the gouged out places in the pavement indicating the point of impact, and testified that the skid marks were to the north of the residence, which is located on a lot to the north of the truck stop property. Her testimony would fix the point of impact, at least inferentially, some one hundred feet north of the northern driveway. The testimony of Mr. Small even as corrected on cross-examinatiop viewed in the light most favorable to the decedents, likewise placed the point of the collision as being approximately one hundred feet north of the driveway entrance. The testimony of both Mr. and Mrs. Small is consistent with the testimony of the highway patrojman who testified that the point of impact was to, the north of the driveway; that the vehicles came to rest on the east bank of the highway after the collision, “approximately right across *89from the north driveway”, and that the distance from the point of impact to where the vehicles came to rest was measured at some seventy-nine feet.
When Roberts started to leave the truck stop his car was parked on the south side of the building, headed directly into the side of the building. He could, of course, have driven arqund the rear of the building and come out of the north driveway, as contended by Weir. Three witnesses were in position to see him go around the rear of the building and come out on the north, if he had done so, and none of them saw him. While the testimony of these witnesses does not establish the precise point at which Roberts did enter the highway, in my view, such evidence creates a reasonable inference that Roberts did not come around the building and out of the north driveway, as contended by Weir, but that he logically entered the highway at least some distance so.uth of the driveway.
Even if it be assumed that Roberts entered the highway from the northern driveway, it does not necessarily follow that the Weir vehicle, if driven at a reasonable rate of speed and under contrql, was approaching so closely as to constitute an immediate hazard and require Roberts to yield the right of way. Broughten testified that Roberts proceeded from a stopped position. It would be highly improbable that the speed of his vehicle averaged more than fifteen miles per hqur in proceeding from the driveway to the point of impact some hundred feet away. At fifteen miles an hour he would have moved twenty-two feet per second, with the result that four and a half seconds would have elapsed from the moment Roberts started to enter until he was struck. On the other hand, at sixty-five miles an ho.ur, Broughten was moving approximately ninety-five feet per second, which, by simple calculation, would put the Weir vehicle some four hundred thirty feet to the north of the driveway when Roberts proceeded to enter the highway.
Whether under the influence, or nqt, Roberts, in the absence of anything which would put him on notice to the con*90trary, was entitled to assume that the Weir vehicle was being driven with due care and in accordance with law, and I do not think we would be warranted in holding, as a matter of law, that he was required to yield the right o(f way to a vehicle some four hundred thirty feet distant, and that his failure to do so was the proximate cause of the resulting deaths. It is, I think, clearly inferable that but for the Weir vehicle being driven at an excessive rate of speed and out of control, no collision would ever have occurred.
I am convinced of the soundness of the foregoing, even if it be conceded that Roberts did emerge from the northern driveway. Not heretofore mentioned is the fact that Broughten, in an obvious effort to explain the physical evidence showing that the entire occurrence happened on his wrong side of the highway, contended that there were two impacts between the vehicles and that the point in the highway, determined by the patrolman to, be the point of impact, was the point of the second impact, and that the first impact between the vehicles occurred at some undetermined point on the highway to the north thereof. If this testimony on his part be taken as true and particularly when considered in connection with the evidence tending to prove that Roberts entered the highway at a point south of the north driveway, it would obviously follow that the Weir vehicle was greatly more than four hundred thirty feet away when Roberts entered the highway.
The facts that Price did not see the lights on the Roberts vehicle and that there is some evidence tending to show that the left frontal portion of Roberts’ vehicle was struck at a slight angle are easily explained and do not change my view as to the issue of proximate cause being for the jury. Price was driving over rolling terrain and the evidence clearly supports the inference that his view of the approaching Roberts vehicle was obscured by Weir’s large tractor-trailer outfit occupying Roberts’ lane of travel for an appreciable period of time prior to the impact. If it be conceded that the Roberts’ vehicle was in fact struck at a slight angle, it is *91only logical that Roberts would have tried to vere further to his right when he saw the Weir outfit bearing down upon him in his lane of travel, with the result of a somewhat angular impact.
In conclusion, I address my remarks to a proposition of law stated in the opinion, the soundness of which I question, and, moreover, think such unnecessary to a decision in any view of the case. The trial judge held that Roberts’ administrator was bound by the allegations of his pleadings and the evidence adduced by him to the effect that Roberts was intoxicated. Such was the primary basis of the decision of the trial judge in setting the Roberts’ verdict aside, and the opinion affirms such proposition of law. Not apparently called to the attention of or considered by the trial judge, however, was the dual nature of the capacities and, in this instance, conflicting duties of Roberts’ administrator. He elected to assert a cross-action herein against Weir, instead of bringing a separate action for the benefit of Roberts’ widow and four minor children, which, under the circumstances, of necessity, involved him taking totally inconsistent positions. While nominally the same person, he was sued by Dixon in his general capacity as administrator. The actio,n against Weir was maintainable by him, not in his general capacity as administrator but, as the special representative of the statutory beneficiaries. Bennett v. Spartanburg Ry., Gas & Electric Co., 97 S. C. 27, 81 S. E. 189; Complete Auto Transit, Inc. v. Bass, 229 S. C. 607, 93 S. E. (2d) 912; Ellison v. Simmons, 238 S. C. 364, 120 S. E. (2d) 209.
Aside from the doubtful propriety of Roberts’ administrator asserting herein a cross-action, the rationale of the above cited cases would, to say the least, raise a serious question as to whether he had any right to do so, had objection been asserted. In the inconsistent positions that he topk by choice, when he asserted the cross-action, it was incumbent upon him to prove, if he could, in defense of the Dixon action that Roberts was intoxicated, and that Dixon *92was guilty of contributory negligence in riding with him. On the other hand, it was incumbent upon him as the special representative qf the statutory beneficiaries of Roberts to prove, if he could, that Roberts was not at the time under the influence or otherwise negligent.
I seriously question the soundness of the holding that Roberts’ administrator was bound in his capacity as such special representative qf the statutory beneficiaries by what he had necessarily and properly done in his general capacity as administrator of the estate, which was, however, clearly adverse to the rights and interests of the statutory beneficiaries, four of whom were minors. If, as concluded in the opinion, the evidence is susceptible qf no other reasonable inference than that Roberts was under the influence and that such was a proximate cause of his death, a decision as to whether Roberts’ administrator was so bound is totally unnecessary to a decision qf the cause. The decision of such an important issue should be left to a case where such becomes necessary.
Lewis, J., concurs.