Cohens v. Atkins
| Decision Date | 16 November 1998 |
| Docket Number | No. 2903.,2903. |
| Parties | Alphonso COHENS, Respondent, v. Lonnie G. ATKINS, Appellant. |
| Court | South Carolina Court of Appeals |
Robert J. Thomas, of Rogers, Townsend & Thomas, of Columbia, for Appellant.
John W. Carrigg, Jr., and Jon T. Clabaugh, Jr., both of Hammer, Hammer, Carrigg & Potterfield, of Columbia, for Respondent.
This is a negligence action brought by Alphonso Cohens for damages sustained in an automobile accident. The jury awarded Cohens $3,700 in actual damages. On appeal, the defendant, Lonnie Atkins, contends the trial judge erred (1) in failing to charge the complete text of S.C.Code Ann. § 56-5-1520(a) (1991) () and (2) in excluding evidence that Cohens's attorney referred him to a physician for additional medical treatment. We reverse and remand.
The accident occurred on Highway 378 in Richland County on June 11, 1995. It was a rainy Sunday afternoon, just before 5:00 p.m. Cohens testified that he entered the right lane of Highway 378, a four-lane highway, from another road. Cohens was traveling around 50 to 55 m.p.h. in the right lane when he realized that he needed to turn around. Cohens turned his signal on and proceeded to move into the left lane after checking for oncoming traffic. Cohens stated he began to slow down to 25 or 30 m.p.h. while in the left lane because he intended to turn around at a median that was approximately 400 feet away. Cohens estimated that he had been in the left lane approximately 15 to 20 seconds when Atkins struck his car from behind. Cohens described the impact as "pretty hard."
Cohens was in good health before the accident, but his neck and back were hurt in the collision. On Sunday evening, he went to a Doctor's Care office, where he received a neck brace and medicine. Cohens testified he went to the emergency room at Baptist Medical Center the following day because he continued to have pain. He saw Dr. Joseph Cavanaugh, an internist, for a total of five visits, and went to Columbia Rehabilitation for eight physical therapy sessions. Cohens has fully recovered from the accident. Cohens presented medical bills totaling $2,192.88 which were incurred as a result of the accident. Dr. Cavanaugh was not called as a witness at trial. Cohens also claimed $3,069.81 in property damage for repairs to his car and $224 for two days of lost wages. The jury returned a verdict of $3,700 in favor of Cohens. Atkins appeals.
In an action at law on appeal of a case tried by a jury, the jurisdiction of this Court extends merely to corrections of errors of law, and a factual finding of the jury will not be disturbed unless a review of the record discloses there is no evidence which reasonably supports the jury's findings. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).
Atkins contends the trial judge erred in denying his request to charge the last sentence of § 56-5-1520(a), which the judge intentionally omitted from his instruction on the statute to the jury.
At trial, Atkins testified he was traveling in the left lane of Highway 378 when he saw a group of three vehicles entering the right lane from an entrance ramp. It had been raining and the road was wet. The middle vehicle, driven by Cohens, had a left turn signal on, but Cohens did not immediately attempt to move into the left lane. As Atkins approached the third vehicle in line, Cohens moved over into the left lane in front of him. Atkins stated he started to slow down, but as he did so, Cohens "hit his brakes and I hit my brakes hard and hit him." Atkins asserts the defense theory was Cohens changed lanes abruptly and braked in order to make an immediate U-turn.
Cohens's attorney asked the trial judge to charge § 56-5-1520(a), which reads as follows:
General rule. No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed must be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use care.
S.C.Code Ann. § 56-5-1520(a) (1991) (emphasis added). The judge agreed to the request, and he charged the jury on the statute in the following manner:
The general rule in this state is that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed must be so controlled as may be necessary to avoid colliding with any vehicle or conveyance on the highway. In other words, you've got to govern your speed so as to be careful to avoid hitting somebody. All right. But that's the statute and if you find the person violated that statute, then you've found that this person was careless.
At the conclusion of the jury instructions, defense counsel for Atkins objected to the omission of the words "in compliance with legal requirements and the duty of all persons to use care" in the charge of § 56-5-1520(a). Counsel argued the omission made the statute sound like it imposed an unqualified duty on the part of the defendant to avoid colliding with any vehicle or conveyance on or entering the highway. The trial judge stated he intentionally deleted the language, but qualified the statute by subsequently stating "you've got to be careful, exercise ordinarily [sic] care with your speed."
When instructing the jury, the trial judge is required to charge only the current and correct law of South Carolina. McCourt v. Abernathy, 318 S.C. 301, 457 S.E.2d 603 (1995). ...
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