McCown v. Muldrow , 91 S.C. 523 ( 1912 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] June 12, 1912. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through the negligence and recklessness of the defendant.

The complaint alleges, that on the 13th day of February, 1910, the plaintiff, after nightfall, was proceeding from the American Hotel into Evans street, in the city of Florence, S.C. for the purpose of getting into an automobile, that was in the act of stopping, at a point opposite said hotel, a few feet distant from the north side of Evans street. That before plaintiff reached said automobile, he was struck and run over by an automobile, that was being driven by the defendant. That the plaintiff was injured through the recklessness and negligence of the defendant, in operating said automobile on a public thoroughfare, at a dangerous rate of speed; in failing to have any lights on said automobile; in failing to give any signal or other warning of approach of said automobile; in attempting to drive the said automobile too near the sidewalk, at a time when it was occupied by pedestrians; in attempting to drive said automobile between the one to which plaintiff was going, and the sidewalk, when there was not sufficient space to allow its passage; in failing to keep a proper lookout, and in failing to observe the plaintiff, in his position of danger, so as to avoid striking him.

The defendant denied the allegations of negligence and recklessness, and set up the defense of contributory negligence.

At the close of the plaintiff's testimony, the defendant made a motion for the direction of a verdict in his favor, which was refused, but neither a motion for a nonsuit, nor for the direction of a verdict, was made at the close of all the testimony.

The jury rendered a verdict in favor of the plaintiff, for one thousand dollars actual damages, and three thousand dollars punitive damages.

The defendant made a motion for a new trial, which was also refused, and he has appealed upon exceptions, which will be reported.

First Exception: This exception cannot be sustained, for the reason that similar testimony was introduced without objection. Machine Co. v. Browning,72 S.C. 424, 52 S.E. 511; Laughlin v. Pub. Ser. Cor.,83 S.C. 62, 64 S.E. 1010.

Second Exception: The objection to the testimony, is thus stated in the record: "Objected to, and asked that it be stricken out, as the witness only testified, as to how fast it stated off from Lake's corner." In addition to what was said, in disposing of the first exception, it is scarcely reasonable to suppose, that testimony tending to show how fast the automobile started off, from Lake's corner, may have caused the jury to render a verdict in favor of the plaintiff.

Third Exception: This exception is disposed of by what has already been said. Fourth Exception: The testimony was irrelevant, and the refusal to allow its introduction, was not prejudicial to the rights of the defendant.

Fifth Exception: The following appears in the record: "Plaintiff objects to testimony of witness, as it refers to the testimony of Mr. Beard. Objection sustained. Exception noted. The witness (continuing): It was impossible, in my opinion, for anybody situated as I was, with my car going in that direction, to judge of the speed — Objected to.

"The Court: State the facts and tell whether you could tell — the witness (continuing)." The witness then testified in substantially the same language, as that to which the objection had been interposed, without further objection. Sixth Exception: The testimony, as to what the witness would have done, was irrelevant and the exception is overruled.

Seventh Exception: The rule is thus stated in Easler v.Ry., 59 S.C. 311, 37 S.E. 938: "Without undertaking to review in detail, the different cases in this State upon this subject (expert testimony), we will state the rules that have been followed: First. A witness is competent, to give his opinion as an expert, when the facts upon which it is based, are within his own knowledge.Second. If the facts upon which his opinion is formed are in issue, his testimony is not admissible, except upon an hypothetical state of facts. Third. If the mode in which an injury was inflicted, or the extent thereof, is itself one of the disputed facts in the case, the witness will not be allowed to testify, that in his opinion, the injury was inflicted in a certain manner or to a certain extent."

The Court uses the following language in the case ofFitzgerald v. Mfg. Co., 74 S.C. 232, 54 S.E. 373: "It is contended that the testimony was competent, as the opinion of an expert. This Court will not reverse the judgment of the Circuit Court, for excluding expert testimony, unless it is convinced that the error, if any, was harmful. It is for the trial Court to decide whether the question under inquiry, is one upon which expert opinion is proper, and whether the witness has the necessary qualifications. 2 Elliott Ev., sec. 1036. The trial Court's conclusion on these matters, will not be disturbed except in a case of abuse of discretion, which we do not find in this case. ``Opinion evidence is based on necessity, and is not admissible as a general rule when the facts can be reproduced before the jury, in such a way as to show the condition of things, upon which the opinion of the witness was based.' Easler v. Ry. Co.,59 S.C. 311, 315, 39 S.E. 938. It is a cardinal rule, that the evidence must be of such a character, as not to fall within the range of common experience and observation, and, therefore, not to be intelligible to jurors, without the aid of opinion. 12 Ency. Law 458, and cases cited."

Eighth Exception: What was said in considering the seventh exception, disposes of this exception.

Ninth Exception: The motion was for the direction of a verdict and not for a nonsuit, between which motions, there is a marked difference.

A motion for a nonsuit, may be made at any time during the trial of the case. "The usual time for such motions, is when the plaintiff closes his evidence in chief, but it is not beyond the power of the Judge, charged with the control of the conduct of the cause, to entertain such a motion, even at the close of the whole evidence for both sides, since there is no particular time in the trial of a case, when a motion for nonsuit must be made." Gandy v. Ins. Co., 52 S.C. 224, 29 S.E. 655;McEwen v. Mazyck, 3 Rich. 210.

A motion for a nonsuit, on the ground that there is no testimony, tending to sustain the material allegations of the complaint, does not involve the merits, and the granting of such motion, would not support a plea of res adjudicata.

In the case of Whaley v. Stevens, 24 S.C. 479, the Court said: "The judgment in the former case, was nothing more than a judgment of nonsuit for failure of evidence, to establish one of the material allegations of the complaint; and it certainly cannot be pretended that such a judgment on such a ground, would support a plea of res adjudicata."

But a motion to direct a verdict involves the merits, and a judgment entered upon the verdict rendered by a jury, is res adjudicata, as to all questions properly arising under the pleadings. The fact that the verdict was rendered by the jury, under the direction of the presiding Judge, does not impair the efficiency of the judgment entered thereon, to support a plea of res adjudicata.

A motion for the direction of a verdict cannot properly be made, until all the testimony on both sides which is to be submitted to the jury, has been introduced.

The rule is thus stated, in the case of Cincinnati TractionCo. v. Durack, 14 Am. Eng. Ann. Cases (0) 218: "Where, on the trial of a civil action, the defendant at the close of the plaintiff's evidence, moves for a verdict thereon in his favor, and on excepting to the decision of the Court, overruling such motion, introduces evidence to support his grounds of defense, and rests without renewing the motion, at the close of all the evidence, the exception is deemed to be waived, and it is no longer a predicate for error, in a reviewing Court." (Syllabus.) The opinion is very able and the notes are voluminous and exhaustive.

The Court in that case quotes, with approval, the following language from Barabasz v. Kabat, 91 Md. 53: "It would certainly produce a failure of justice, if a verdict of a jury, rendered upon the evidence of both parties, and upon instructions at the close of the case, to the granting or refusing of which there was no exception, should be set aside upon an alleged erroneous ruling upon the plaintiff's evidence only; and it would be trifling with the purpose for which Courts are created, to require the review of an error which, if declared, would not justify a reversal." The Court, also, quotes with approval the following statement of the rule, from the case of Hopkins v. Clark, 158 N.Y. 299 : "It is the contention of appellants that they are entitled to the benefit of the exception, taken to the denial of the motion to dismiss, at the close of the plaintiff's case, as that was not strengthened, but was clearly weakened, by the defendant's evidence. In other words, this Court is to be asked in all cases, to examine the evidence of the defendant, no matter how lengthy it may be, to determine whether defendant, shall have the benefit of an exception, concerning which all doubt would be removed, by his renewing the motion to dismiss, at the close of the whole evidence."

It will thus be seen, that the proposition which we have announced, is sustained both by reason and authority.

There is, however, another reason why this exception can not be sustained. The complaint alleges two causes of action, one based on negligence and the other on recklessness.Roberts v. Tel. Co., 73 S.C. 520,53 S.E. 985. The defendant had the right to move for the direction of a verdict, as to each cause of action. In such cases the rule thus stated, in Machen v. Tel. Co., 72 S.C. 256,51 S.E. 697: "The cases are numerous to the point, that where the complaint alleges damages as the result of negligence, and as the result of wilful misconduct, a nonsuit cannot be granted as to the whole case, if there be any testimony tending to show damages, as the result of either negligence or wilfulness. In all the cases cited above, the motion for nonsuit was directed to the whole case, and the point decided was that nonsuit was improper, if there be any evidence tending to support a verdict for damages, either for negligence or wilful misconduct." This language was quoted with approval, in Carter v. Tel. Co.,73 S.C. 430, 53 S.E. 539. There was testimony tending to show, that the defendant was driving his automobile, when the injury was sustained, at a rate of speed, greater than was allowed by the ordinance of the city; and this was evidenceper se, and not merely prima facie, of negligence.

In Whaley v. Ostondoff, 90 S.C. 281, the Court says: "When evidence of negligence is only prima facie, it is subject to rebuttal, but when there is negligence per se, it is conclusive of that question. The fact that there is negligenceper se, does not, however, tend to show that such negligence is actionable. The question whether negligence is actionable, depends upon the further question, whether such evidence was the direct and proximate cause of the injury."

There is still another reason why this exception cannot be sustained. Contributory negligence on the part of the plaintiff, cannot be introduced as a defense, against a cause of action based upon the defendant's reckless misconduct. La Fitte v. Ry., 73 S.C. 467,53 S.E. 55.

If the request had been charged, the defendant would have received the benefit of the defense of contributory negligence, against the cause of action for recklessness.

Tenth Exception: What has been said disposes of this exception.

Eleventh Exception: The record shows, that the request referred to in the exception was, in fact charged, and that the modification, that contributory negligence would not be a defense, if the defendant was guilty of recklessness, was the statement of an elementary principle of law, and, therefore, the exception has no foundation.

Twelfth Exception: It would have been proper for his Honor, the presiding Judge, to refuse, altogether, to charge the request, as it embodied a charge on the facts. Weaver v. Ry., 76 S.C. 49, 56 S.E. 657. In that case the Court having under consideration somewhat similar request, used this language: "The presiding Judge could not have charged the said requests, without intimating to the jury, the inference to be drawn from the facts, so carefully set out in detail. The instructions would have been in violation of article V, section 26 of the Constitution, and were, therefore, properly refused."

Thirteenth Exception: The presiding Judge charged the request, but also charged other law, applicable to the case; and it has not been made to appear, that the additional charge of a correct principle, at that particular time, was prejudicial error.

Fourteenth Exception: The failure to charge the requests mentioned in this exception, is assigned as error, on the ground that there was no testimony, tending to show wilfulness or wantonness, on the part of the defendant. There was testimony tending to sustain the allegations of the complaint, and it was for the jury to determine whether there was wantonness.

Fifteenth Exception: What has already been said disposes of this exception.

Sixteen Exception: It has not been made to appear to the Court, that there is anything in the record sustaining this assignment of error.

Seventh Exception: The testimony must be considered in its entirety, and when so considered, justifies the verdict.

Eighteenth, Nineteenth, Twentieth and Twenty-firstExceptions: What has already been said disposes of these exceptions.

Judgment affirmed.

Only MESSRS. JUSTICES WOODS and HYDRICK participatedin this opinion and concur.

Petition for rehearing was dismissed by formal 17 order filed June 12, 1912.