McCabe v. Sloan

• Decision Date: 15 June 1937
• Docket Number: 14500.
• Citation: 191 S.E. 905,184 S.C. 158
• Parties: McCABE v. SLOAN.
• Court: South Carolina Supreme Court

191 S.E. 905

184 S.C. 158

McCABE v. SLOAN.

No. 14500.

Supreme Court of South Carolina

June 15, 1937

Appeal from Common Pleas Circuit Court of Richland County; S.W. G Shipp and C.J. Ramage, Judges.

Action by I. M. McCabe against Harry Sloan and others, wherein all defendants but named defendant were eliminated. Judgment was rendered for plaintiff, named defendant's motion for a new trial was denied, and he appeals.

Reversed and remanded for retrial.

Tobias & Turner, of Columbia, for appellant.

J Hughes Cooper and Edwin H. Cooper, both of Columbia, for respondent.

BONHAM Justice.

This action was brought against Harry Sloan, South Carolina Highway Department, and Highway Patrol Motorcycle No. 100. Upon a demurrer to the complaint the two last-named defendants were eliminated from the action.

The case was tried by his honor, Judge Shipp, with a jury at Spring, 1936, term of the court of common pleas for Richland county. The jury found for plaintiff.

The action was one for damages which, it is alleged, were received by plaintiff when struck by a motorcycle which was ridden by defendant.

Motions for nonsuit, directed verdict, and new trial were made at proper times and all of them denied.

Notice of intention to appeal was given, and before the time to perfect the appeal had expired, defendant gave notice of a motion for new trial based on after-discovered evidence. Thereupon Judge Shipp granted an order extending the time for the defendant to perfect his appeal, until this motion was heard. By consent of counsel the motion for new trial on after-discovered evidence was heard by Judge Ramage, then presiding in the Fifth circuit. He filed a short order denying the motion.

Whereupon the defendant gave further notice of intention to appeal from the judgment entered on the verdict in the case and from the order of Judge Ramage. These matters were heard together in this court.

It is not necessary to set out the pleadings. They may be summarized in this way:

Plaintiff alleges that he was crossing Sumter street, Columbia, S. C. going eastward; that he had reached nearly to the northeastern intersection of that street with Hampton avenue, when he was struck by a motorcycle operated by defendant at a dangerous and unlawful speed, and in violation of the city ordinances and the Statutes of South Carolina; that he suffered serious and permanent injuries.

For answer, the defendant sets up a general denial, and, further, that while he was driving his motorcycle in a careful and lawful manner, he observed plaintiff crossing Sumter street, going east and near the intersection of Hampton avenue on its north side; that plaintiff was accompanied by several dogs which were under his direction and control; that as defendant had almost reached this point of intersection, one of the dogs darted out into Sumter street in the path of defendant on the motorcycle causing defendant to be thrown therefrom; that plaintiff darted back into Sumter street in the path of the motorcycle, with which he collided. He pleads plaintiff's negligence, and willfulness and recklessness, and plaintiff's contributory negligence, willfulness, and recklessness.

Appellant's counsel state in their brief that the exceptions raise three questions:

"1. Should the trial Judge have granted the Defendant's motions for non-suit and for directed verdict?

2. Should the trial Judge have required the Defendant to assume the burden of proof with regard to the defense of intervening or independent cause?

3. Should the Defendant's motion for new trial on after discovered evidence have been granted?"

Our conception of the serious question involved in this appeal makes it inexpedient to discuss in detail the issue propounded by the first question. It is sufficient to say here that there was evidence which made it the duty of the trial judge to send the case to the jury.

It seems unnecessary to cite authorities in support of the postulate that when one pleads an affirmative defense, the burden is on him to prove it. See Jackson v. Frier, 146 S.C. 322, 144 S.E.

66; Lorick & Lowrance v. Julius H. Walker & Co., 153 S.C. 309, 150 S.E. 789.

Unquestionably, defendant's plea that the dog ran out in front of and against his motorcycle and caused the collision with plaintiff, and without which it would not have happened, is an affirmative defense; it sets up a defense designed to disprove the plea of plaintiff that defendant's alleged negligence was the proximate-the direct cause of the collision. The defendant pleaded an independent, intervening cause. It was incumbent on him to prove it.

The issue which gives us concern and thought is made by the third question, viz.: "Should defendant's motion for new trial based on the ground of after discovered evidence have been granted?"

This motion was not heard by Judge Shipp, who tried the case. Judge Ramage, who heard it, could not have been fully advised of the facts which appear in the record. In his short order refusing the motion, he said: "In many of the cases the 'evidence' was documentary and of a conclusive character. I refer to C.J. and also R. C. L. on 'New Trials'. As a rule, where the evidence is cumulative no new trial is granted, though there are exceptions."

It would appear then that the main ground upon which he bases his denial of the motion is that the evidence offered by the movant is cumulative.

It may be conceded that motions based upon the ground of newly discovered evidence are not as a rule favored by the court; but it is not to be inferred that the courts will not, on a sufficient showing, grant such motion.

And it may be conceded that such motions are addressed to the sound discretion of the judge who hears them; but it does not follow that if the judge erroneously exercises his discretion, the appellate court may not review his action.

The cardinal question in this case is: What occurred at the instant of the contact of the motorcycle with the plaintiff?

The plaintiff gives his version of the occurrence, and the defendant gives his. The plaintiff states that he saw the defendant approaching on his motorcycle when he was 200 feet away; that he saw him jump or fall from it when about 30 feet away; that he has no knowledge of what occurred immediately thereafter. The defendant states that when he was near the plaintiff the white dog ran out in front of and against the motorcycle, which caused him to be thrown from it, and the machine struck the plaintiff.

For the plaintiff four witnesses testified, but not one of them saw the occurrence at the time of the impact of the machine and Mr. McCabe.

J. W. Leaphart saw some one lying on the ground and a white dog on the curb when he got there.

J. H. Hightower, policeman, was at corner a block away when the collision occurred.

J. L. Reid, Jr., was changing a tire on his car in his garage on the southwest corner of Sumter street and Hampton avenue; attention attracted by skidding; saw some commotion at northeast corner of Sumter street where it intersects Hampton avenue, and went over there.

W. S. Fulmer. Was coming south on Sumter street, north of Hampton avenue; saw something white roll out into street; it was a dog; passed first the dog, then the motorcycle, then Mr. McCabe.

For the defendant one witness, H. E. Epting, testified. Was at Reids Filling Station, southwest corner of Sumter street and Hampton avenue; first thing he knew was when the motorcycle hit a white object and skidded down the street; rushed over and found that it was a man and a dog. The object in contact with the motorcycle was a dog. Gives no testimony regarding the immediate occurrences preceding his seeing the motorcycle strike the dog.

Here, then, is an impasse, a blind alley. No one save plaintiff and defendant were present when the collision occurred. The plaintiff frankly testifies: "This motorcycle, at a very high speed was coming, and all I remember was seeing someone jump off the motorcycle, but after that I don't remember anything else that happened."

It is essential to a full understanding and a just decision of this unfortunate occurrence, in which a good man has been grievously injured, to know which of two diametrically opposing statements is correct.

Was the motorcycle moving at an excessive rate of speed, and did the rider of it jump, or fall from it at a distance of about 30 feet from plaintiff, and the machine then skidded and struck plaintiff and the dog? Or, did the dog run out against the motorcycle and cause the defendant to be thrown therefrom and the machine skidded and struck plaintiff? Defendant claims that the action of the dog in running into the motorcycle was the independent, intervening proximate cause of the collision, which relieves him of liability.

Here is the hiatus in the evidence as shown by the record.

The defendant comes forward now in his motion for a new trial on the ground that since the trial an eyewitness to the collision has been found whose testimony supplies that which is lacking.

As hereinabove stated, Judge Ramage denied the motion apparently for the reason that he considered the testimony cumulative.

"In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear, (1) that the evidence is such as will probably change the result, if a new trial is granted. (2) That it has been discovered since the trial. (3) That it could not have been discovered before the trial by the exercise of due diligence. (4) That it is material to the issue. (5) That it is not merely cumulative or impeaching." 20 R.C.L. 290, § 72.

It will be conceded that this is the rule approved in this jurisdiction. Does the showing made by the movant in this case measure up to...