Baker v. Port City Steel Erectors, Inc., 19728

Citation261 S.C. 469,200 S.E.2d 681
Decision Date27 November 1973
Docket NumberNo. 19728,19728
CourtUnited States State Supreme Court of South Carolina
PartiesEmma Jean BAKER, Administratrix of the Estate of Rufus Leroy Baker, Appellant, v. PORT CITY STEEL ERECTORS, INC., and John Henry Small, Respondents.

Page 681

200 S.E.2d 681
261 S.C. 469
Emma Jean BAKER, Administratrix of the Estate of Rufus Leroy
Baker, Appellant,
v.
PORT CITY STEEL ERECTORS, INC., and John Henry Small, Respondents.
No. 19728.
Supreme Court of South Carolina.
Nov. 27, 1973.

[261 S.C. 470] Nexsen, Pruet, Jacobs & Dallis, Columbia, for appellant.

[261 S.C. 471] Sinkler, Gibbs, Simons & Guerard, Charleston, for respondents.

Page 682

[261 S.C. 472] LEWIS, Justice.

Recovery was sought in this action for the wrongful death of plaintiff's intestate, resulting from injuries received in a threevehicle accident, about six (6) miles south of Huger, South Carolina, on November 10, 1970. The collision involved a truck owned by defendant, Port City Steel Erectors, Inc., and driven by its employee, the defendant, John [261 S.C. 473] Henry Small; a gasoline tanker driven by plaintiff's intestate, Rufus Baker; and an automobile driven by one Sidney Jackson. Jackson is not a party to the action. Upon the trial, a jury returned a verdict for the defendants, from which plaintiff has appealed. A new trial is sought upon the grounds that the trial judge erred (1) in permitting use of a scientific textbook in the cross-examination of plaintiff's expert witness and (2) in refusing to instruct the jury that an adverse inference could be drawn against defendants from their failure to produce the testimony of the defendant John Henry Small. Additional sustaining grounds have been filed, which we find it unnecessary to consider.

The first question is based on a ruling by the trial judge during cross-examination of an accident reconstruction expert who testified for plaintiff. This witness testified as to the various factors considered by him in analyzing how the accident occurred, and on cross-examination, he was asked the following:

'Q. In your analysis of how this accident occurred did you take into consideration conservation of momentum?

'A. Not particularly.

'Q. . . .. In fact you used the conservation of energy, didn't you?

'A. That's right, basically its strictly an energy factor.

'Q. All right, sir. I hand you Statistics in Dynamics, a book for mechanical engineers. I ask you to look at . . . page 574 of this textbook in basic dynamics, read the underlined portion of paragraph 13.15.

'A. (Presumably reading) However, the method of impulse and momentum is the only practical method in problems of impact, a solution based on direct application of force and they would be unwieldly and the method of work and energy cannot be used since impact from the first real action involves the loss of mechanical energy.

[261 S.C. 474] 'Q. The use of energy cannot be used in an impact investigation, isn't that what is says?

'A. Yes, sir.

'Q. But that's what you used, energy?

'A. That's correct. There are other books and there are other formulas and there are other treatises that deal equally as thoroughly as that book. I'm not familiar with that book.'

The above cross-examination of the witness was permitted over plaintiff's objection. Other than the foregoing, there was no use by defendants of the textbook in cross-examination or in the trial.

Plaintiff contends that it was error to permit defendants to so cross-examine the expert witness from a scientific textbook with which the expert was unfamiliar, relying upon Code Section 26--142 and the cases of Mitchell v. Leech, 69 S.C. 413, 48 S.E. 290; Edwards v. Union...

To continue reading

Request your trial
6 cases
  • State v. Charping
    • United States
    • United States State Supreme Court of South Carolina
    • 23 d1 Novembro d1 1998
    ...call a witness who is equally available to the other party." Citing 20 Am.Jur. 193 Evidence, § 189. See also Baker v. Port City Steel Erectors, 261 S.C. 469, 200 S.E.2d 681 (1973) (unfavorable inference arising from failure of a party to call an available material witness may be drawn only ......
  • In re Gonzalez
    • United States
    • United States State Supreme Court of South Carolina
    • 3 d3 Setembro d3 2014
    ...“The fact that the unfavorable inference may be drawn does not require that the jury draw it.” Baker v. Port City Steel Erectors, Inc., 261 S.C. 469, 476, 200 S.E.2d 681, 683–84 (1973). The rule has been applied in both civil and criminal cases, and it has been implemented as either a jury ......
  • State v. Hammond, 20635
    • United States
    • United States State Supreme Court of South Carolina
    • 13 d1 Março d1 1978
    ...witness have been testified to by other qualified witnesses. See annotation 135 A.L.R. 1375, et seq." In Baker v. Port City Steel Erectors, Inc., 261 S.C. 469, 200 S.E.2d 681 (1973), we discussed the doctrine and in a concurring opinion alerted the bench and bar to our reservations relative......
  • State v. Ford, 23209
    • United States
    • United States State Supreme Court of South Carolina
    • 4 d3 Outubro d3 1989
    ...exceptions and affirm them pursuant to Supreme Court Rule 23 based upon the following authorities: Baker v. Port City Steel Erectors, Inc., 261 S.C. 469, 200 S.E.2d 681 (1973) (alleged hearsay); State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981) (prior inconsistent statement). For the reaso......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT