Griffin v. Griffin

• Decision Date: 29 March 1984
• Docket Number: No. 0208,0208
• Court: South Carolina Court of Appeals
• Parties: Benjamin Franklin GRIFFIN, Respondent, v. Henry Daniel GRIFFIN, Appellant. . Heard

Page 24

318 S.E.2d 24

282 S.C. 288

Benjamin Franklin GRIFFIN, Respondent, v. Henry Daniel GRIFFIN, Appellant.

No. 0208.

Court of Appeals of South Carolina.

Heard March 29, 1984.

Decided June 25, 1984.

James F. Walsh, Jr., Orangeburg, and Doyet A. Early, III, Bamberg, for appellant.

W.D. Rhoad, Bamberg, for respondent.

GOOLSBY, Judge:

In this personal injury action, Henry Daniel Griffin appeals claiming that the trial court erred in not granting his motions for directed verdict and judgment non obstante veredicto and in granting Benjamin Franklin Griffin's motion for a new trial after a jury returned a verdict in favor of Franklin and awarded him nominal sums for actual and punitive damages. Daniel also appeals the trial court's order settling the record on appeal. We affirm the case on the merits but reverse and remand the settlement order.

His appeal raises the following questions: (1) whether Daniel was guilty of negligence as a matter of law; (2) whether Franklin was guilty of contributory negligence as a matter of law; (3) whether Franklin assumed the risk involved as a matter of law; (4) whether the trial judge abused his discretion in granting Franklin's motion for a new trial upon the ground of inadequacy of the verdict; and (5) whether the trial judge erred in ordering Daniel to print the entire trial transcript?

Franklin and Daniel are brothers. On March 22, 1978, a diesel-powered tractor-trailer truck owned by Franklin experienced transmission trouble. Bolts no longer held the bell housing to the transmission. The tractor's operator, James Pruitt, managed to drive the vehicle to Gulledge Truck & Equipment Company in Orangeburg. Because Gulledge's mechanics could not give the transmission immediate attention, Franklin undertook to repair it himself.

With Daniel and Pruitt helping him and using a hydraulic jack and pry-bar, Franklin attempted to realign the holes of the bell housing and transmission so that new bolts could be inserted and the bell housing reattached to the transmission. The effort failed because the fly wheel was out of line with a portion of the transmission and needed to be slightly turned. Franklin crawled beneath the tractor and asked his brother, who was in the cab, to "bump" the starter in order to make the fly wheel turn. Franklin prepared to insert the bolts the moment the fly wheel rotated and the alignment became corrected.

When Daniel pressed the starter, the engine started and the vehicle's wheels began to spin. Pruitt, who was standing on the passenger side of the tractor, grabbed Franklin by the legs and attempted to pull him out from under the tractor as the tractor moved forward. Spinning tires caught Franklin's arm, however, and pulled him back beneath the tractor seriously injuring him about the arms and chest.

1.

Daniel argues that the trial court should have directed a verdict in his favor because the evidence is insufficient to support findings that he was negligent and that his negligence was the proximate cause of Franklin's injuries.

In determining whether to grant a motion for a directed verdict, the evidence and all inferences that can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party. King v. North River Ins. Co., 278 S.C. 411, 297 S.E.2d 637 (1982); Tallon v. Seaboard Coast Line R. Co., 270 S.C. 362, 242 S.E.2d 418 (1978). "A verdict should not be directed in a negligence action where there is a question of fact for the jury and the evidence is such that reasonable men might differ." 65A C.J.S. Negligence § 251(6)a at 793 (1966). Only when but one reasonable inference can be drawn from the evidence is the trial court obligated to direct a verdict in favor of the moving party. Farr v. Duke Power Co., 265 S.C. 356, 218 S.E.2d 431 (1975); Williams v. Kalutz, 237 S.C. 398, 117 S.E.2d 591 (1960). Because the issue of negligence is primarily one of fact [ Kimbrell v. Bi-Lo, Inc., 248 S.C. 365, 150 S.E.2d 79 (1966) ], the question of whether due care was exercised under the particular circumstances of a case will ordinarily not be determined by the trial court as a matter of law but will usually be left for the jury to decide. Jarvis v. Green, 257 S.C. 558, 186 S.E.2d 765 (1972). Likewise, "what is the proximate cause of an injury is ordinarily a question for the jury" and "is to be determined as a fact, in view of the circumstances of fact attending it." 57 Am.Jur.2d Negligence § 136 at 487 (1971); Childers v. Gas Lines, Inc., 248 S.C. 316, 149 S.E.2d 761 (1966); Schumpert v. Southern Railway Co., 65 S.C. 332, 43 S.E. 813 (1903).

Franklin testified that, before going beneath the tractor to insert the bolts into the bell housing, he instructed Daniel to put the tractor in "high range and bump the starter" in order to turn the fly wheel. With the transmission in high gear, he continued, the motor would "stall and shut off" and the tractor "would not move" should the motor "accidentally crank up." On the other hand, he said, if the motor "happened to crank up in low range," the tractor "would move forward." Daniel, he further testified, "bumped the starter several times" and "when ... he pushed the starter too hard" the engine suddenly "cranked up" and the tractor "started to move forward." Franklin stated that he yelled as the spinning tires snatched his arm and that Daniel, instead of switching the ignition off, jumped from the cab "to see what was wrong."

Daniel's testimony corroborated that of Franklin. He testified that the transmission was in low gear. Further, he conceded that he "must have bumped [the starter] too hard and [the motor] cranked up" as a result. Daniel added that he did not attempt to switch the engine off until after Franklin told him to do so.

Here, then, sufficient evidence may be found in the record to support inferences that Daniel was negligent in his operation of the motor vehicle in question and that his negligence was the proximate cause of Franklin's injuries. The trial court properly refused Daniel's motion for directed verdict.

2.

Daniel also contends that the trial court should have either directed a verdict in his favor or granted his motion for judgment n.o.v. because the only reasonable inference to be drawn from all the evidence is that Franklin's contributory negligence proximately caused his injuries.

A plaintiff's contributory negligence, of course, may bar recovery for the injuries he sustained. 65A C.J.S. Negligence § 130 at 101 (1966). Whether a plaintiff was contributorily negligent in a particular case is to be determined by reference to all relevant facts and circumstances surrounding the case. Taylor v. Bryant, 274 S.C. 509, 265 S.E.2d 514 (1980); Toole v. Salter, 249 S.C. 354, 154 S.E.2d 434 (1967). If either the testimony is conflicting or the inferences to be drawn from the testimony are doubtful, the question of whether a plaintiff was guilty of contributory negligence that will bar recovery is for the jury to determine. Grainger v. Nationwide Mutual Ins. Co., 247 S.C. 293, 147 S.E.2d 262 (1966); Bingham v. Powell, 195 S.C. 238, 11 S.E.2d 275 (1940). Rarely does the question of a plaintiff's contributory negligence become a question of law for the court. Ward v. Zelinski, 260 S.C. 229, 195 S.E.2d 385 (1973); Gillespie v. Ford, 225 S.C. 104, 81 S.E.2d 44 (1954). It becomes so only when the evidence is susceptible of but a single reasonable inference. Gray v. Barnes, 244 S.C. 454, 137 S.E.2d 594 (1964); Green v. Bolen, 237 S.C. 1, 115 S.E.2d 667 (1960). In determining whether a plaintiff was guilty of contributory negligence as a matter of law, the whole evidence must be viewed in the light most favorable to him. Clawson v. City of Sumter, 247 S.C. 499, 148 S.E.2d 350 (1966); 57 Am.Jur.2d Negligence § 297 at 696 (1971). Where there is any uncertainty as to the existence of contributory negligence, the question is one for the jury. Rogers v. Atlantic Coast Line R. Co., 222 S.C. 66, 71 S.E.2d 585 (1952); 65A C.J.S.Negligence § 255(1) at 854 (1966).

Franklin was not guilty of contributory negligence as a matter of law in crawling beneath the tractor after asking his brother to put the transmission in high gear and to "bump" the starter while he prepared to insert bolts into the transmission's bell housing, "unless it conclusively appeared beyond reasonable inference to the contrary that the danger in so doing was so obvious, imminent, and threatening that a reasonably prudent person would not have done so." Rose v. Missouri District Telegraph Co., 328 Mo. 1009, 43 S.W.2d 562, 568, 81 A.L.R. 400 (1931). Guided by this rule, we hold that the question of Franklin's contributory negligence was not one of law for the court but was one of fact for the jury. We think Franklin had a right to rely on the assumption that his brother would exercise due care in doing exactly as he was asked to do. No error was committed by the trial court, therefore, in denying Daniel's motions for directed verdict and judgment n.o.v. upon the ground that Franklin was contributorily negligent as a matter of law.

3.

Daniel maintains next that the trial court should have either directed a verdict in his favor or granted his motion for judgment n.o.v. because the only reasonable inference to be drawn from all the evidence is that Franklin assumed the risk involved in attempting to repair the transmission.

Under the defense of assumption of risk, "sometimes referred to as the doctrine of 'incurred risk,' or 'taking the risk or hazard,' or 'running the risk' " [65A C.J.S. Negligence § 174(1) at 289 (1966); Smith v. Edwards, 186 S.C. 186, 195 S.E. 236, 237 (1938) ], a plaintiff who voluntarily assumes a risk of injury arising from the negligent conduct of the defendant cannot recover for the injury. 57 Am.Jur.2d Negligence § 274 at 663 (1971). The doctrine of assumption of risk rests on contract [ Daniel v. Tower Trucking Co. Inc., 205 S.C. 333, 32 S.E.2d 5 (1944); Stogner v....