Small v. Pioneer Machinery, Inc.

• Citation: 450 S.E.2d 609,316 S.C. 479
• Decision Date: 04 October 1994
• Docket Number: No. 2243,2243
• Parties: James R. SMALL, Appellant, v. PIONEER MACHINERY, INC., and Timberjack, Inc., Respondents. . Heard
• Court: South Carolina Court of Appeals

Page 609

450 S.E.2d 609

316 S.C. 479

James R. SMALL, Appellant, v. PIONEER MACHINERY, INC., and Timberjack, Inc., Respondents.

No. 2243.

Court of Appeals of South Carolina.

Heard Oct. 4, 1994.

Decided Oct. 24, 1994.

Rehearing Denied Dec. 2, 1994.

Certiorari Denied June 16, 1995.

J. Marvin Mullis, Jr., and Frank A. Barton, Columbia, for appellant.

Rebecca Laffitte, C. Mitchell Brown and William C. Wood, Jr., Nelson, Mullins, Riley & Scarborough, Columbia, and Margaret C. Kelsey, Milwaukee, WI, for respondents.

GOOLSBY, Judge.

The questions on appeal in this action brought by James R. Small against Pioneer Machinery, Inc. and Timberjack, Inc. concern the exclusion of an expert witness's testimony, the sufficiency of the evidence as to strict liability, negligence, and breach of warranty, and the affirmative defenses of contributory negligence, assumption of risk, and intervening third-party negligence. The trial court directed a verdict in favor of Pioneer Machinery and Timberjack. Small appeals. We reverse and remand.

Small's complaint alleges his chain saw became stuck in a tree he was cutting on December 8, 1988; Small asked a co-worker who was operating a log skidder manufactured and distributed by Pioneer Machinery and Timberjack to push against the tree with the skidder until Small could remove the chain saw; the throttle stuck because of a design defect; the stuck throttle caused the skidder to surge forward out of control and to push a tree over onto him; and he was injured as a result.

I.

We first address the related questions of whether the trial court erred in excluding the testimony of Small's expert witness and in directing a verdict as to all causes of action on the ground of insufficiency of the evidence. Basic to the trial court's exclusion of the testimony of Small's expert witness and to its direction of a verdict on the ground of insufficiency of the evidence was the trial court's view that the evidence showed only that the tree had begun to fall before the skidder's throttle stuck.

When considering whether to grant a party's motion for a directed verdict, the trial court, in a law case, must view the evidence and all inferences that may be reasonably drawn therefrom in the light most favorable to the nonmoving party. Olin Mathieson Chem. Corp. v. Planters Corp., 236 S.C. 318, 114 S.E.2d 321 (1960); May v. Hopkinson, 289 S.C. 549, 347 S.E.2d 508 (Ct.App.1986). The trial court must eliminate from its consideration all evidence contrary to or in conflict with the evidence favorable to the nonmoving party and give to the nonmoving party every favorable inference that the facts reasonably suggest. Collins & Sons Fine Jewelry, Inc. v. Carolina Safety Sys., Inc., 296 S.C. 219, 371 S.E.2d 539 (Ct.App.1988).

We turn to the evidence with these rules in mind.

Small's co-worker, Sylvester Harris, testified during direct-examination he had been having problems with the throttle sticking on a log skidder; he had been operating the skidder for some time prior to December 8, 1988; he had previously observed debris around the skidder's throttle linkage and had cleaned out the area around the throttle before work each morning; chain saws frequently become embedded in trees and logging workers often use skidders to free them; Small's chain saw got stuck in a tree Small was cutting; he tried to push the tree with the skidder far enough to enable Small to remove his chain saw; he was pressing the gas pedal and releasing the clutch to make the skidder move forward; the throttle suddenly stuck as he pushed the tree and the skidder, because of the stuck throttle, pushed the tree too hard, causing the tree to bolt up, fall into another tree, and break limbs out of the other tree; and a limb from the other tree fell and struck Small as he tried to get out of the way, severely injuring Small. ¹

Harris further testified he experienced no more problems with the skidder that day, ² but he found debris in the throttle linkage when he checked it the next morning. ³

We think fair inferences from Harris's testimony are that the tree did not begin to fall until after the skidder's throttle stuck and that there was debris in the throttle mechanism.

Small offered a licensed professional engineer as an expert witness on the questions of causation and the throttle mechanism's design. ⁴ The trial court, however, refused to allow him to express his opinion on either subject because, as we noted above, he viewed Harris as testifying only that the tree was falling before the throttle stuck. ⁵

The question of whether to admit or exclude testimony of an expert witness is a matter largely left to the discretion of the trial court; however, the exercise of this discretion will be reversed where an abuse of discretion has occurred. Creed v. City of Columbia, --- S.C. ----, 426 S.E.2d 785 (1993). Here, the trial court abused its discretion because there was evidence, albeit contradictory, that supported the formulation of the expert witness's opinion regarding causation and there was evidence that supported the expert witness's opinion regarding defective design.

It is not unusual, of course, for a case to have contradictory evidence and inconsistent testimony from a witness. In a law case tried before a jury, it is the jury that must decide what part of the witness's testimony it wants to believe and what part it wants to disbelieve. Berkeley Elec. Coop., Inc. v. South Carolina Pub. Serv. Comm'n, 304 S.C. 15, 402 S.E.2d 674 (1991); Smoak v. Liebherr-America Inc., 281 S.C. 420, 315 S.E.2d 116 (1984).

The expert witness's testimony, then, should have been admitted. See Carter v. R.L. Jordan Oil Co., 294 S.C. 435, 441, 365 S.E.2d 324, 328 (Ct.App.1988), rev'd on other grounds, 299 S.C. 439, 385 S.E.2d 820 (1989) ("An expert is given wide latitude in determining the basis of his testimony."). Although contradictory evidence lay at the foundation of the expert witness's opinion on the question of causation, this was a matter for cross-examination. The jury could have either accepted or rejected the expert witness's opinions, depending on its view of the evidence. Cf. id. 294 S.C. at 442, 365 S.E.2d at 328 ("[An] isolated statement on cross examination went to the credibility and weight of [the expert's] opinion, not to its admissibility.").

Moreover, that the expert witness's opinion on the question of causation was based on contradictory evidence provided no basis at all for the exclusion of the expert witness's opinion on the question of defective design. The question of whether the tree began to fall before or after the skidder's throttle stuck had nothing to do with the skidder's design.

The exclusion of the proffered testimony clearly prejudiced Small's case. Harris's testimony concerning how the events that caused Small's injuries unfolded and the improperly-excluded expert witness's opinions on the questions of causation and design provided, when viewed in the light most favorable to Small, sufficient evidence to withstand the directed verdict motion on each of the causes of action to the extent the motion was grounded on insufficiency of the evidence.

II.

We next address the question of whether the trial court erred in directing a verdict on the grounds of contributory negligence, assumption of risk, and intervening third-party negligence in favor of Timberjack on all causes of action and on the grounds of assumption of risk and intervening third-party negligence in favor of Pioneer Machinery on the causes of action for strict liability and for breach of warranty. We hold it did so.

The defenses of contributory negligence and assumption of risk ordinarily present questions of fact for the jury and only rarely become questions of law for the court to determine. Wallace v. Owens-Illinois, Inc., 300 S.C. 518, 389 S.E.2d 155 (Ct.App.1989). The same thing may be said of the defense of intervening third-party negligence. Johnson v. Finney, 246 S.C. 366, 143 S.E.2d 722 (1965); Ballou v. Sigma Nu Gen. Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct.App.1986).

A trial court must direct a defense verdict based on contributory negligence where the only reasonable inference to be drawn from the evidence is that the plaintiff's negligence was the direct and proximate cause of the plaintiff's injury. Burgess Brogdon, Inc. v. Lake, 288 S.C. 16, 339 S.E.2d 507 (1986); Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct.App.1985). If, however, the evidence of contributory negligence is "conflicting or susceptible to different reasonable inferences, the issue is for the jury to determine." Wallace, 300 S.C. at 523, 389 S.E.2d at 158.

A trial court may further find "the plaintiff assumed the risk as a matter of law only if the sole reasonable inference to be drawn from the evidence is that the plaintiff freely and voluntarily exposed himself to a known danger which he understood and appreciated." Id.

In determining the question of whether a plaintiff was contributorily negligent or assumed the risk as a matter of law, the trial court must view the evidence and all its reasonable inferences in the light most favorable to the plaintiff. Wallace, 300 S.C. 518, 389 S.E.2d 155.

The trial court did not give the precise reasons why it directed a verdict on the affirmative defenses of contributory negligence and assumption of risk. Pioneer Machinery and Timberjack, however, mention in their brief Small's failure to properly cut the tree, a failure that led to the chain saw's becoming lodged in the tree, and to Small's failure to prepare an escape route around the tree just prior to Harris's using the skidder to dislodge the chain saw.

Regarding contributory negligence, the question of whether the direct and proximate cause of Small's injuries was Small's miscutting of the tree or his not preparing an escape route around it was for the jury to determine, given the circumstances of this case and particularly the suggestion in...