Morrison v. South Carolina State Highway Dep't, No. 14344.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: BONHAM, Justice
• Citation: 187 S.E. 344
• Docket Number: No. 14344.
• Decision Date: 01 August 1936
• Parties: MORRISON. v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT.

187 S.E. 344

MORRISON.
v.
SOUTH CAROLINA STATE HIGHWAY DEPARTMENT.

No. 14344.

Supreme Court of South Carolina.

Aug. 1, 1936.

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

Action by J. H. Morrison against the South Carolina State Highway Depart-

[187 S.E. 345]

ment. From an order setting aside verdict for the plaintiff and ordering a new trial, the plaintiff appeals.

Affirmed.

Hamilton & Gaston and Hemphill & Hemphill, all of Chester, for appellant.

John M. Daniel, Atty. Gen., and McDonald, Macaulay & McDonald, of Chester, for respondent.

BONHAM, Justice.

The appellant brought action against the respondent to recover damages for injuries which he alleges he sustained on the night of May 11, 1932, while traveling on state highway No. 9, which injuries were caused by defects in the highway due to the negligence of the respondent in the construction and maintenance thereof in the particulars set out in the complaint. The case was tried by his honor, Judge Mann, with a jury. Motions for nonsuit and directed verdict were made by defendant and refused. The jury found for plaintiff. A motion for new trial was made and argued, and taken under advisement. In due time Judge Mann filed his order, setting aside the verdict and ordering a new trial. From that order, the appeal comes to this court.

There are seven exceptions, which appellant's counsel elect to treat in their brief under two heads, to wit:

1. Was there evidence that appellant's injury was caused by negligence of respondent?

2. Did the testimony show that appellant's negligence was the sole or contributing cause of his injury?

Appellant's counsel argue that defendant's motion for new trial was based upon legal grounds, identical in character with those upon which his motions for nonsuit and directed verdict had been made and refused. That the refusal of the motions in effect amounted to saying that there was competent and relevant evidence to go to the jury on the questions of the negligence of the defendant as the proximate cause of the injury, and the contributory negligence of plaintiff; that the motions were properly denied because the court could not say as a matter of law that recovery was barred.

Counsel cite Caughman v. State Highway Dept., 154 S.C. 43, 151 S.E. 107, and Bouknight v. State Highway Department, 157 S.C. 154, 154 S.E. 95.

Counsel for appellant thus state their position: "The motion for directed verdict, like the previous motion for nonsuit, having been predicated upon one of two legal theories, cither (1) that there had been a total failure on the part of appellant to show by testimony any actionable negligence or breach of duty on the part of respondent which was the proximate cause of the injury, or (2) that appellant failed to show that he was free from fault or contributory negligence; it follows that when the learned trial Judge reversed his own rulings and granted a new trial upon the theory that he should have directed a verdict, he must have concluded as a matter of law, either (a) that there had been a total failure on the part of appellant to present any testimony reasonably tending to establish actionable negligence or breach of duty on the part of respondent, or (b) that the evidence permitted of no other reasonable inference but that 'plaintiff's own negligence, if not the sole proximate cause of his injury, was at least the contributing cause.'"

Did the judge grant the new trial as a matter of law, or did he grant it on the ground that the only reasonable inference to be deduced from all the testimony is that the plaintiff was negligent and that his negligence was the proximate, if not the sole, cause of his injury?

The order appealed from is here reproduced:

"This case was tried before me with a jury at the recent term of Court of Common Pleas and resulted in a verdict for the plaintiff.

"At due times, motions were made for nonsuit and directed verdict. But being in grave doubt as to the relevancy of such motions, both were overruled.

"The matter is now before me on motion for a new trial, based upon several grounds which will not be separately set out here. The motion was fully and ably argued before me in open Court.

"The ground for new trial rested upon the kinship of the juror Smith to the plaintiff must be overruled. While I do not think the showing discloses a relationship now existing which would have, as a matter of law, disqualified the juror, still, had the matter been called to my attention before the juror was selected, I would have stood him aside; and even though such relationship was not known to defendant at the time the juror was accepted, had

[187 S.E. 346]

it been called to my attention before verdict and when it was discovered, I should have, in my effort to guarantee an absolutely unbiased verdict, ordered a mistrial. But, the situation having been revealed to the counsel for the defendant before the verdict was rendered, I think the objection now comes too late. And this ground is overruled.

"The grounds rested on the merits of the case present a far more serious aspect.

"I have several times mentally reviewed the testimony in the case searching for the apparent, reasonable justification of the verdict of the jury. But after protracted consideration, I find myself at such wide variance with that of the jury that I can take none other than the absolutely opposite view.

"I cannot escape the conviction that plaintiff himself was negligent and that his negligence was the proximate cause (if not the sole cause) of his injury.

"To me it is impossible to reconcile,

"1. His full knowledge of the condition of the road at the point in question;

"2. The full and complete complement of signs, warnings and signals, all visible and easily to be seen and interpreted by any person of reasonable powers of perception;

"3. His utter failure to notice or heed such notices; and

"4. The apparent speed at which the car must have been traveling, the terrific impact at the bridge pier nearly 140 feet away, with the conduct of a careful, prudent and sober man.

"His explanation as to how it happened does not, to my mind, bear the earmarks of good reason and plausibility.

"In fact, I am now satisfied that I should have honored the motion for a directed verdict for the defendant.

"Therefore, it follows that the grounds on which the motion for a new trial, other than the relationship of the juror Smith, must be sustained, and the verdict set aside and a new trial granted.

"And it is so Ordered."

The issue resolves itself into the answer to this question:

The trial judge having refused motions for nonsuit and directed verdict on the grounds (1) failure of evidence to show actual negligence on the part of the defendant; (2) that plaintiff had failed to show by the proper preponderance of the evidence that he was free from fault in bringing about his own injuries, but, on the contrary, it appears that appellant's own negligence, if not the sole proximate cause, was the contributing cause, is he thereby debarred from granting a motion for new trial on the ground that upon a review of the whole evidence he is satisfied that he should have directed a verdict for defendant on the ground that plaintiff's own negligence, if not the sole cause of his injury, contributed thereto as a proximate cause?

In other words, if the trial judge, on consideration of the motion, concludes that he erred in not granting the motion for directed verdict because of a misconception of the evidence, may he not correct...