Doe v. Asbury

• Decision Date: 23 February 1984
• Docket Number: No. 0139,0139
• Court: South Carolina Court of Appeals
• Parties: Joe Ann DOE, Respondent, v. Albert E. ASBURY and Ryder Truck Lines, Inc., Appellants. . Heard

Page 849

314 S.E.2d 849

281 S.C. 191

Joe Ann DOE, Respondent, v. Albert E. ASBURY and Ryder Truck Lines, Inc., Appellants.

No. 0139.

Court of Appeals of South Carolina.

Heard Feb. 23, 1984.

Decided April 2, 1984.

W. Ray Berry, Columbia, for appellants.

Gary D. Brown, Ridgeland, for respondent.

SANDERS, Chief Judge:

This is a suit arising out of a collision between an automobile driven by respondent Joe Ann Doe and a tractor trailer truck driven by appellant Asbury as the employee of appellant Ryder. The jury returned a verdict in favor of Doe. We affirm.

I

Asbury and Ryder first argue there was insufficient "creditable testimony as to the negligence and/or recklessness of appellant driver to warrant submitting the case to the jury."

In an action at law, the jurisdiction of this Court extends only to the correction of errors of law. 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 Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976); Stevens v. Sun Publishing Company, 270 S.C. 65, 240 S.E.2d 812, cert. denied 436 U.S. 945, 98 S.Ct. 2847, 56 L.Ed.2d 786 (1978). In an appeal of this nature, the weight of the evidence presented at trial is not at issue. Instead, the question is simply whether there is any evidence in the record which would reasonably support the contentions of the party prevailing at trial. Tisdale v. Kerr McGee Chemical Corporation, 266 S.C. 64, 221 S.E.2d 531 (1976); Willis v. Floyd Brace Co., Inc., 309 S.E.2d 295 (S.C.App.1983). Judging the credibility of the testimony of witnesses is a function of the jury, not the court, as is the weight to be given to such testimony. Tisdale; Davenport, by his G/A/L, et al. v. Walker, S.C.App. 313 S.E.2d 354 (1984).

It is therefore our task simply to review the record of the trial court and determine whether there was any evidence supporting the jury verdict. Willis. We find the evidence as follows:

This accident occurred on U.S. Highway 17 near Hardeeville, South Carolina. Highway 17 is a four lane highway, running generally north and south, and divided by a median provided for making left turns. Doe testified she was stopped in the median, headed South and preparing to make a left turn, when she saw the Ryder truck coming toward her. She described the truck as "wobbling" and "going in and out one lane and coming on the median." She said the truck then collided with the front left of her car, pushing it straight back on the median.

Asbury testified he was proceeding north on Highway 17 in the lane closest to the median when Doe suddenly turned left in front of him causing his truck to collide with the front left of her car. He denied driving into the median. Asbury further testified there were skid marks from his truck and "gouges" in the north bound lane of the highway in which he was traveling but no skid marks from his truck going into the median. He also said there was debris in the highway about three feet from the median. According to Asbury, his truck traveled about ten feet after the impact and came to rest on top of the Doe car and had "it mashed down to the pavement," with the front of the car in his lane of travel.

The investigating Hardeeville policeman testified he received a call about the accident when he was two to three blocks away and arrived on the scene within "no more than five seconds." His testimony tended to contradict, in part, the previous testimony of both Doe and Asbury. He said he found the Doe car headed south at an angle, pushed back 19 feet in the median, with damage to its left front and side. He described the Ryder truck as stopped in the northbound outer lane of the highway away from the median. He further testified there was debris in the inner northbound lane "85 feet 5 inches" from where the truck was stopped and tire tracks on the wet pavement from the trailer of the truck back to and before the debris, but no tracks from the truck into the median.

In our opinion, the testimony of Doe was sufficient to warrant submitting this case to the jury. The jury chose to accept her testimony over that of Asbury. The jury also chose to disregard the testimony of the policeman as to debris and tire marks which tended to support Asbury's version of how the accident occurred. We are not at liberty to substitute our view of the evidence for the verdict of the jury. Gurley, et al. v. United Services Automobile Association, 309 S.E.2d 11 (S.C.App.1983).

Asbury and Ryder argue the location of the tire marks and debris are "physical facts establishing that the truck did not cross over into the median," and the testimony of Doe should be disregarded as "inherently or physically impossible or contrary to physical facts and common knowledge and experience." In support of their position, they cite Still v. Hampton and Branchville Railroad, 258 S.C. 416, 189 S.E.2d 15 (1972).

We have examined this case and find it is distinguishable on its facts. It also contains dicta supporting a result opposite to that urged by Asbury and Ryder. In Still, the plaintiff ran his car into the 32nd car of a 40-car train crossing the highway at night. His suit against the railroad was based exclusively on its failure to give reasonable warning by lights, flagman or otherwise, that the highway was blocked by its train. The duty of a railroad to so warn arises only where conditions and circumstances are such that the railroad knows, or should know, that a person driving carefully, at a reasonable speed with proper lights cannot, or might not, be able to see the cars of the train in time to avoid a collision. Poole v. Southern Railway Company, 250 S.C. 213, 157 S.E.2d 175 (1967). Still testified he did not see the train in time to stop, although he was driving between 50 and 55 miles per hour with his lights on high beam and had unobstructed visibility for 400 feet ahead. In sustaining a directed verdict for the railroad, the court said it "disregarded" testimony of a witness that due to the slope of the highway a train on the crossing is not illuminated by the headlights of a car until the vehicle is within 90 to 100 feet of the track. The court characterized this testimony as "astonishing" and observed that it is "of common knowledge that gentle to moderate grades, such as those at this crossing, have no significant effect on the visibility provided by automobile headlights on high beam." However, the court went on to hold:

But even if the testimony of this witness involved a question of credibility for the jury, there was no error in directing a verdict for the defendant company. Under the rule adduced, the burden on a railway company to take extraordinary precautions in an occupied crossing situation does not arise until it knows or by the exercise of due care should have known of the unusual hazard existing at the crossing. Here,...