McCown v. Muldrow

• Decision Date: 30 March 1912
• Parties: McCOWN v. MULDROW. [D1]
• Court: South Carolina Supreme Court

74 S.E. 386

91 S.C. 523

McCOWN v. MULDROW. ^[D1]

Supreme Court of South Carolina

March 30, 1912

Appeal from Common Pleas Circuit Court of Florence County; Thos. S Sease, Judge.

"To be officially reported."

Action by James McCown against Charles W. Muldrow. From a judgment for plaintiff, defendant appeals. Affirmed.

The exceptions are as follows:

"(1) His honor erred in allowing the witness, James Baskins, to give his opinion, over the objection of the defendant concerning the speed of defendant's car at the time of the accident; the error being (a) that defendant's car was not at the time of the accident under the immediate observation of witness; (b) that the facts within the knowledge of witness were not sufficient to furnish an adequate basis for such opinion.

"(2) His honor erred in admitting over defendant's objection, and in refusing to strike out upon motion of defendant, the testimony of the witness, John Hollis, that he would judge from the way defendant started off that his automobile was running at a speed of not less than 18 or 20 miles an hour at the time of the accident; the error being (a) that witness did not observe the speed of the automobile at the time of the accident, and based his opinion wholly upon the manner in which it started off; (b) that witness did not have adequate facilities for observation as to the speed of the automobile at the time of the accident; (c) that witness should only have been allowed to testify as to facts within his observation, and should not have been allowed to state the conclusions or inferences which he drew from such facts.

"(3) His honor erred in refusing to grant the motion made by defendant upon cross-examination of the witness John Hollis to strike out the testimony given by witness as to speed at which defendant was running his automobile when the accident occurred; the error being (a) that witness, by his own admission, did not have sufficient knowledge of the speed of automobiles on which to base his opinion; (b) that his honor's ruling disregards the rule of law governing the admission of opinion evidence, which requires that witness should state facts upon which he bases his opinion, and must be shown to have had adequate facilities for observation.

"(4) His honor erred in refusing to allow the defendant to ask the witness W. H. Malloy (who was city clerk and treasurer), upon cross-examination, whether he had any report of defendant's having violated the city ordinances on the day of the accident; the error being (a) that the city ordinances were introduced in evidence for the purpose of showing that defendant was driving his automobile at an unlawful rate of speed at the time of the accident, and the fact that a charge of violation of the city ordinances in this respect had or had not been made against defendant on the day in question would be some evidence to show whether he was guilty of such violation; (b) the circumstances in this case were such as properly to lead to the inference that a charge of violating the city ordinances in respect to exceeding the speed limit would have been made against defendant, had such violation actually existed.

"(5) His honor erred in refusing to allow in evidence the following testimony of the witness, J. W. Ragsdale: 'In my opinion, based on the experience I have had as an automobile driver, and observing other cars driven, it was a physical impossibility for me or Mr. Beard or anybody else in my car to have had any accurate idea of the rate of speed that a car would make going in our direction.' It is respectfully submitted that this testimony was competent and relevant and that his honor's ruling was in error, in that: (a) It was competent for witness to express his opinion as to the possibility for any one in his car to have had an accurate idea of the speed of the approaching car, said witness having previously stated the facts upon which said opinion was based. (b) Witness had qualified as an expert; and it was competent for him to give his opinion whether an occupant of his automobile could accurately judge the speed of an approaching car, as the facts, upon which such opinion was based, were within his personal knowledge. (c) Said testimony was relevant for the purpose of impeaching the testimony of the witness Joe Beard by showing that he did not have adequate facilities for observation of the speed of defendant's car at the time of the accident.

"(6) His honor erred in refusing to allow the defendant to answer the following question: 'Q. Would you or not have run at a high, reckless, or dangerous rate of speed with those young ladies on your car?' It is respectfully submitted that his honor's ruling was in error, in that: (a) Willfulness and wantonness of defendant is one of the material issues in this case; and it was competent for defendant to testify whether or not he consciously and intentionally ran his automobile at such reckless and dangerous rate of speed that accidents would be likely to result. (b) The operation of the automobile at a high, reckless, and dangerous rate of speed would endanger its occupants; and it was competent for defendant to state whether or not he would have acted with reckless disregard of their safety.

"(7) His honor erred in refusing to allow the witness Leslie McLaurin to answer the following question: 'Q. From your own knowledge of the conditions that existed there, what was the cause of that accident?' the error being: (a) That it was competent for witness to express his opinion, as he was present when the accident occurred, and the facts relating to the accident were under his immediate observation; (b) that witness had stated sufficient facts upon which to base his opinion as to the cause of the accident.

"(8) His honor erred in refusing to allow the witness Leslie McLaurin to answer the question asked him upon direct examination whether it would have been possible, with ordinary care on the part of an automobile driver going ten miles an hour, to have stopped his car or have avoided the accident at the time Mr. McCown stepped in front of defendant's car, the error being: (a) That it was competent for witness to give his opinion as an expert in answer to said question, as the facts, upon which the question was based, were within his personal knowledge; (b) that said question was relevant for the purpose of showing whether or not defendant could have avoided the accident by the exercise of reasonable care and skill.

"(9) His honor, the presiding judge, erred in refusing to grant the motion made by defendant at the close of plaintiff's testimony, that a verdict should be directed in his favor, whereas it is respectfully submitted that his honor should have granted the said motion upon the grounds and for the reasons stated therein, to wit: "That the testimony shows that the plaintiff, James McCown, according to his own testimony, stepped off the sidewalk and stepped immediately in front of a moving car without making any effort to ascertain if there were any vehicles or any animals of any kind approaching in his direction, and that, according to his own statement, he made no effort to ascertain that he was stepping into a place of danger, and that, if he had used ordinary care and looked, he would have seen the danger, and would not have stepped in front of the car, and that by his failure to use due care and caution he contributed to the accident by his own carelessness.

"(10) His honor erred in charging the first request submitted by the plaintiff, to wit: 'The violation of a city ordinance is negligence as a matter of law.' It is respectfully submitted that this instruction is in error, in that: (a) It disregards the rule of law that the violation of the ordinance must result in injuries to another, in order to constitute negligence as a matter of law on the part of the person guilty of such violation. (b) There must be a causal relation between the violation of the ordinance and the injury to render defendant liable, and such violation must be the proximate cause of the injury, and in this respect it must appear that compliance with the ordinance would have prevented injury. (c) This instruction was calculated to create the impression upon the jury that, if defendant violated a city ordinance, such violation would be conclusive of his negligence towards the plaintiff, whether or not the accident would have been avoided by compliance with the ordinance.

"(11) His honor erred in not charging the second request submitted by defendant without modification; the said request being as follows: 'The plaintiff seeks a recovery upon the grounds that his injuries were caused by the careless and reckless acts of defendant in operating and driving his automobile on a public thoroughfare. The defendant denies that his negligence caused the injuries complained of. I instruct you that, in order to make out his case, the plaintiff must prove by a preponderance of the evidence that the defendant was guilty of negligence in the manner charged in this complaint, and that his injuries were the direct and proximate result of such negligence on the part of defendant. The plaintiff must show that the defendant did not exercise such care and prudence in operating and driving his automobile as an ordinarily careful and skillful driver would use under similar circumstances. If, in your judgment, he has failed to prove this by a fair preponderance of the evidence, he cannot recover.' It is respectfully submitted that: (a) Said request is a correct statement of the law applicable in this case, and his honor erred in qualifying said request by saying, 'I charge you that, gentlemen, with this modification: If the conduct of the defendant was that of

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