Mccown v. Muldrow.&dagger

• Decision Date: 30 March 1912
• Citation: 74 S.E. 386,91 S.C. 523
• Court: South Carolina Supreme Court
• Parties: McCOWN. v. MULDROW.&dagger

74 S.E. 386

(91 S.C. 523)

McCOWN.

v.MULDROW.†

Supreme Court of South Carolina.

March 30, 1912.

1. Appeal and Ekeob (§ 1050*)—Harmless Error—Admission op Evidence.

Plaintiff cannot complain on appeal of the admission of evidence, where similar evidence was admitted without objection.

[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]

2. Appeal and Error (§ 1050*)—Harmless Error—Admission op Evidence.

In an action for damages for personal injuries received in a collision with an automobile, the admission of evidence as to the speed of the automobile at the tithe of the accident by a witness who did not observe its speed at that time, but based his opinion upon the manner in which it started out some distance away, could not have been prejudicial to defendant.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-^1157, 4166; Dec. Dig. § 1050.*]

3. Municipal Corporations (§ 706*)—Injuries in Streets—Admission op Evidence.

In an action for damages for negligently running over plaintiff with an automobile, evidence as to whether the city clerk and treasurer had received any report of defendant violating the speed ordinances on the day of the accident was irrelevant.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*]

4. Appeal and Error (§ 1058*) — Harmless Error—Admission of Evidence.

There was no reversible error in excluding evidence where witness afterwards repeated his testimony in substantially the same language without further objection.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4200; Dec. Dig. § 1058.*]

5. Municipal Corporations (§ 706*)—Injuries in Streets—Admission of Evidence;— Relevancy.

In an action for damages for running over plaintiff with defendant's automobile, a question to defendant whether he would have run at a high or dangerous rate of speed with young ladies in his automobile was irrelevant.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*]

6. Evidence (§ 548*)—Opinion Evidence-Expert Testimony,

An expert witness may give his opinion when the facts upon which it is based are within his own knowledge, but, if they are in is-sue. he may only state his opinion hypothetical^.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2365; Dec. Dig. § 548.*]

7. Evidence (§ 550*)—Expert Testimony-Mode op Injury.

If the manner in which an injury was inflicted, or its extent, is controverted, an expert witness cannot give his opinion that it was inflicted in a certain manner.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2366, 2367; Dec. Dig. § 550.*]

8. Appeal and Error (§ 970*)—Discretion of Trial Court—Expert Testimony.

The trial court's decision whether a question is one upon which expert testimony is proper and the witness has the necessary qualifications will not be disturbed on appeal, except for abuse of discretion.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3849-3851; Dec. Dig. § 970.*]

9. Evidence (p 470*)—Opinion Evidence.^

Opinion evidence is not as a rule admissible when the facts can be reproduced before the jury so as to show the condition upon which the opinion is desired.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2220; Dec. Dig. § 470.*]

10. Trial (§ 162*)—Nonsuit—Time of Motion.

A motion for nonsuit may be made at any time during trial.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 370; Dec. Dig. § 162.*]

11. Judgment (§ 570*)—Res Judicata—Nonsuit.

An order granting a motion for nonsuit for want of evidence to sustain the allegation of the complaint will not bar a subsequent action.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1028-1034. 1030-1040, 1042-1045, 1165; Dec. Dig. § 570.*]

12. Juogment (§ 570*)—Res Judicata—Directed Verdict.

A judgment upon a directed verdict is res judicata as to all questions properly arising under the pleadings.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. 1028-1034. 1030-1040, 1042-1045, 1165; Dec. Dig. § 570.*]

13. Trial (§ 173*)—Direction of Verdict-Time of Motion.

A motion for a directed verdict cannot be made until all the evidence on both sides is submitted.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 397; Dec. Dig. § 173.*]

14. Trial (§ 420*)—Direction of Verdict-Waiver of Motion.

A motion by defendant for a directed verdict at the close of plaintiff's evidence was waived by introducing evidence to support the defense.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.*]

15. Negligence (§ 136*)—Nonsuit. Where the complaint alleges damages from

ordinary negligence, as well as willful misconduct, a nonsuit cannot be granted on the whole case, if there is any evidence tending to show negligence or willfulness.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]

16. Negligence (§ 100*)—Actions—Defenses —Willful Negligence.

Contributory negligence is not a defense to an action for reckless or willful misconduct.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 85; Dec. Dig. § 100.*]

17. Trial (§ 194*)—Instructions—Charges on Facts.

In an action for damages for personal injuries by being struck by an automobile when plaintiff stepped into the street a few feet north of the corner, defendant requested a charge that he was not bound to exercise the same care against collisions with pedestrians stepping from the sidewalk into the street as would be required at a legal crossing; that crossings were for the convenience and safety of pedestrians in crossing, and an automobile should be slowed at corners, and under such control as to be able to be immediately stopped, but that defendant could assume that no person would step from the sidewalk into the street, where there was no crossing, and where vehicles were constantly passing, without taking reasonable precautions against danger of injury from vehicles. Held, that the charge would have been properly refused as being on the facts.

[Ed. Note.—For other cases, see Trial, Cent. Dis. §§ 413. 439-441, 446-454, 456-466; Dec. Dig. § 194.*]

18. Appeal and Error (§ 1064*)—Harmless Error—Abstract Instructions.

In an action for personal injuries by being struck by an automobile as plaintiff stepped into the street, the court gave defendant's requested charge that one who steps into a street must remember that vehicles, etc., have a right of way, and give due attention thereto, but charged, in connection therewith, that a man must use his senses in any transaction, and in considering plaintiff's conduct the jury should ask whether a man of ordinary prudence under all the circumstances would have acted as plaintiff did, and that he would not be negligent if he so acted. Held that the court's additional instruction, which was abstractly correct, could not be said to have prejudiced defendant.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1004.*]

19. Appeal and Error (§ 837*)—"Review-Evidence.

In determining whether the evidence sustains the verdict, the appellate court must consider the evidence as a whole.

[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. S S37.*]

Appeal from Common Pleas Circuit Court of Florence County; Thos. S. Sease, Judge.

"To be officially reported."

Action by James McCown against Charles W. Muldrow. From a judgment for plaintiff, defendant appeals. Affirmed.

The exceptions are as follows:

"(1) His honor erred in allowing the witness, James Baskins, to give his opinion, over the objection of the defendant, concerning the speed of defendant's car at the time of the accident; the error being (a) that defendant's car was not at the time of the accident under the immediate observation of witness; (b) that the facts within the knowledge of witness were not sufficientto furnish an adequate basis for such opinion.

"(2) His honor erred in admitting over defendant's objection, and in refusing to strike out upon motion of defendant, the testimony of the witness, John Hollis, that he would judge from the way defendant started off that his automobile was running at a speed of not less than 18 or 20 miles an hour at the time of the accident; the error being (a) that witness did not observe the speed of the automobile at the time of the accident, and based his opinion wholly upon the manner in which it started off; (b) that witness did not have adequate facilities for observation as to the speed of the automobile at the time of the accident; (c) that witness should only have been allowed to testify as to facts within his observation, and should not have been allowed to state the conclusions or inferences which he drew from such facts.

"(3) His honor erred in refusing to grant the motion made by defendant upon cross-examination of the witness John Hollis to strike out the testimony given by witness as to speed at which defendant was running his automobile when the accident occurred; the error being (a) that witness, by his own admission, did not have sufficient knowledge of the speed of automobiles on which to base his opinion; (b) that his honor's ruling disregards the rule of law governing the admission of opinion evidence, which requires that witness should state facts upon which he bases his opinion, and must be shown to have had adequate facilities for observation.

"(4) His honor erred in refusing to allow the defendant to ask the witness W. H. Malloy (who was city clerk and treasurer), upon cross-examination, whether he had any report of defendant's having violated the city ordinances on the day of the accident; the error being (a) that the city ordinances were introduced in evidence for the purpose of showing that defendant was driving his automobile at an unlawful rate of speed at the time of the accident, and the fact that a charge of violation of the city...