Crouch v. Cudd

• Decision Date: 30 September 1930
• Docket Number: 12980.
• Parties: CROUCH v. CUDD.
• Court: South Carolina Supreme Court

155 S.E. 136

158 S.C. 1

CROUCH v. CUDD.

No. 12980.

Supreme Court of South Carolina

September 30, 1930

Appeal from Common Pleas Circuit Court of Spartanburg County; M. M Mann, Judge.

Action by Thelma Crouch against J. N. Cudd. From a judgment entered on a verdict for plaintiff defendant appeals.

Affirmed.

L. G Southard and I. C. Blackwood, both of Spartanburg, for appellant.

R. A Hannon and Nicholls, Wyche & Byrnes, all of Spartanburg, for respondent.

STABLER J.

This is an action for damages for personal injuries alleged to have been received by the plaintiff through the negligent acts of the defendant in his operation of an automobile.

The complaint alleges that in February, 1927, while plaintiff was crossing Chestnut street in the city of Spartanburg, the defendant, without notice or warning of any kind, drove his automobile into her, striking her with great force and hurling her to the pavement, rendering her unconscious, and injuring her both externally and internally, etc.; and that her injuries were caused by his negligence and recklessness in the following particulars:

"(a) In that the defendant drove his automobile upon the main thoroughfares of the City of Spartanburg in a careless, reckless and indifferent manner.

"(b) In that the defendant drove his automobile upon public highways in the City of Spartanburg at a rate of speed greater than was reasonable and proper at the time and place, and without having any regard to the use of the highways, and in such a manner as to endanger the life, limb and property of the plaintiff.

"(c) In that the defendant drove his automobile upon approaching a crossing of intersecting public streets and while traversing such crossing or intersection of such streets at a rate of speed greater than was reasonable and proper, and without having any regard for the safety of pedestrians upon the same.

"(d) In that the defendant failed to have his said automobile under control upon approaching a crossing of intersecting public highways or streets in the City of Spartanburg, and while traversing the same.

"(e) In that the defendant upon approaching the plaintiff upon one of the highways, or streets, in the City of Spartanburg, without giving warning of the approach of his said automobile by signalling with a horn, bell, or otherwise.

"(f) In that the defendant, upon approaching the plaintiff, while plaintiff was walking upon the said highway, or street, failed to use every reasonable precaution to insure the safety of the plaintiff.

"(g) In that the defendant, upon approaching the plaintiff while walking upon the streets of the City of Spartanburg, failed to stop his said automobile in order to avoid injury to the plaintiff.

"(h) In that the defendant failed to have good and sufficient brakes upon his said automobile in order to stop the same, and thereby avoid all injury to the plaintiff.

"(i) In that the defendant failed to keep a proper lookout to observe plaintiff, or other persons, walking upon said highway or street.

"(j) In that the defendant instead of keeping a proper lookout as to where he was driving his said automobile, was looking down at the shifting gears of the same, thereby causing said automobile to run into the plaintiff as above set forth.

"(k) In that the highway upon which plaintiff was struck by the defendant's automobile is one of the main thoroughfares in the City of Spartanburg upon which a great number of persons travel, all of which was known or should have been known to the defendant; nevertheless, the defendant drove his said automobile on said highway without paying any attention to what he was doing or where he was going, thereby running his said automobile into the plaintiff as above set forth.

"(l) In that the defendant, while turning to the left into another street from East Main Street, failed to pass around the point of the intersection of the two streets, thereby violating the City Ordinances of the City of Spartanburg.

"(m) In that the defendant drove his said automobile in violation of the State statutes of the State of South Carolina."

The defendant, answering, interposed a general denial, and pleaded unavoidable accident, contributory negligence, and the payment of money by the defendant to the plaintiff constituting a release.

The case was tried before his honor, Judge Mann, at the April, 1929, term of court of common pleas for Spartanburg county. Defendant's motions for a nonsuit and for a directed verdict were refused, and the jury found for the plaintiff $2,500 actual damages. From judgment entered on the verdict, the defendant appeals.

By his first and second exceptions, the appellant complains of error in the court below in refusing to continue the case. It appears from the statement made by the trial judge in overruling the motion, that a roster of cases for trial had been prepared, and that, after this roster had been followed for a time, some of the cases being tried and others, including the case at bar, being passed, counsel in some of the passed cases requested the court to revert to them for trial, but he thought that there was sufficient work ahead for the dates fixed and decided that he would not revert to the passed cases unless the docket was thoroughly disposed of and there was nothing else to be done. Later, counsel for plaintiff called up the case at bar, stating that he understood Mr. Southard, one of counsel for defendant, desired to make a motion. Mr. Southard, who was present, indicated that he had no motion to make, as the case had been passed on the roster and the court had stated that no one of such cases would be reverted to for trial. Counsel for plaintiff then said that, if Mr. Southard's mother was ill, as he understood she was, he would be glad to agree to a continuance, but would like to have some assurance that the case would be tried at the next, the May, term of court. In reply Mr. Southard indicated, that he did not think he could try it before the fall term. A few days later, Mr. Blackwood, of counsel for the defense, moved the court for a continuance on the grounds that Mr. Southard's mother was very ill, that he himself was expected to be called to North Carolina at any time to engage in the trial of a case there, and that Mr. Daniel, also of counsel for the defense, had just returned from Washington and was not in physical plight to enter into trial. The court in passing upon the matter, stated that, if Mr. Southard were the only counsel in the case, the motion for a continuance would be granted, but, as there were other able counsel associated with him, no good reason was made apparent why the case should not be tried.

"The fundamental principle running throughout the subject of continuances is that the granting or refusal of a continuance rests in the discretion of the court to which the application is made, and that its ruling in reference thereto will not be disturbed by an appellate tribunal unless an abuse of discretion is shown. This is because the lower court is apprised of the circumstances of the case and the previous proceedings, and is therefore in a better position to decide on the propriety of granting the application than the appellate court." 6 R. C. L. 544. See, also, Carolina Timber Company v. Holden, 90 S.C. 470, 73 S.E. 869; State v. Kenny, 77 S.C. 240, 57 S.E. 859.

Under the facts and circumstances disclosed, there was no abuse of discretion on the part of the trial judge in refusing the continuance asked for. Further, the appellant suffered no harm. The record shows that all his counsel were present and participated in the trial, defending with vigor and ability.

When Dr. Hunter, a witness for the defense, was on the stand, counsel for plaintiff asked him this question: "Is it a fact that William Osler, the authority on arthritis, says that it can be and often is caused by trauma?" to which the witness replied, "Yes, sir."

The defendant objected to the testimony on the ground that it was hearsay and not within the exceptions to the rule provided for by statute. The court overruled the objection, and the defendant excepts.

While it appears that the admission of the testimony was error, it was harmless. There was abundant evidence, exclusive of that complained of, to establish the fact that arthritis can be and often is caused by trauma; and, while all of the witnesses who testified on that point said that it might be due to other causes, none of them denied that it might be caused in some manner by trauma, or injury. The exception, therefore, is overruled.

Dr. Warfield, physician at Converse College, testified that when Miss Crouch, the plaintiff, first matriculated at Converse (time not stated by the witness) she asked to be excused from gymnasium work because of a recent operation. On direct examination of the witness, the following occurred:

"Q. Doctor, state whether or not at that time you diagnosed Miss Crouch as highly nervous? (Objection.)

"The Court--Yes."

The appellant complains that it was prejudicial error not to allow Dr. Warfield to answer the question. If there was error, it did no harm, for the reason that the fact that the plaintiff was very nervous prior to the accident was established by the undisputed testimony of her own witnesses.

By his fifth exception, the appellant complains that the court committed error in holding, as a matter of law, that Chestnut and East Main were intersecting streets.

Chestnut street joins and unites with East Main street at right angles on the south, but does not cross it. Section 10 of the traffic ordinance of the city of Spartanburg provides that "all vehicles turning to the left into another street shall pass around the point of intersection of...