Powers v. City of Aiken, 19116
| Decision Date | 02 November 1970 |
| Docket Number | No. 19116,19116 |
| Citation | 177 S.E.2d 370,255 S.C. 115 |
| Court | South Carolina Supreme Court |
| Parties | John M. POWERS, Respondent, v. The CITY OF AIKEN, Appellant. |
Henry Busbee, Aiken, for appellant.
John Bodenheimer, of Henderson, Salley, Cushman & Bodenheimer, Aiken, for respondent.
This action was brought by the plaintiff, Powers, against the City of Aiken to recover damages resulting to him from the negligent operation of a city patrol car. The jury awarded Powers actual damages. The city has appealed.
Under the terms of Section 47--71 of the 1962 Code (recently repealed) recovery may be had against a municipality only in case negligent acts on behalf of the city are the Sole proximate cause of the injury. It is alleged in the complaint:
'That the aforesaid collision was the proximate result solely of the acts of negligence of the said police officer and was not brought about either in whole or in part by the negligence or carelessness of the plaintiff or by the contributory negligence of the third party.'
It is implicit in the verdict that the jury found that the damages which Powers sustained were proximately caused solely by the negligent acts of a police officer in the operation of the city's patrol car.
The city raises three questions on this appeal, but has abandoned one of them, leaving only two for our determination:
1. Is there any evidence in the record showing actionable negligence on the part of the City of Aiken in bringing about the collision between the automobile of plaintiff and the automobile of a third party?
2. Is there any competent evidence in the record of this case tending to show that plaintiff, upon the occasion in question, was free of negligence in bringing about the collision between his automobile and an automobile of a third party?
Objection is made before us by counsel for Powers that the contention that there is no evidence of actionable negligence against the city was not raised in the court below. We have searched the record and agree that the trial judge was not given an opportunity to rule upon this issue, and accordingly, the question is not properly before us. This is a court of review. The purpose of an appeal under our procedure is to determine if the lower court did something that it should not have done, or omitted doing something it should have done. A trial judge will not be reversed for failing to grant a motion on a ground that was not submitted to him. For the guidance of the bar we restate the holding made by this court in many cases heretofore: This court will not grant relief on alleged error asserted for the first time on appeal.
The city has abandoned the exception wherein it first contended that there was no evidence showing that the collision was not brought about through the negligence of a third party.
There remains for our determination only one question, and that is: was Powers guilty of contributory negligence as a matter of law? If he was guilty of contributory negligence as a matter of law Powers cannot prevail. On the other hand, if the evidence is susceptible of the inference that he was guilty of contributory negligence, and also of the inference that he was not guilty of contributory negligence, then a jury issue is made and the lower court must be affirmed.
We view the evidence in the light most...
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...In Roche v. South Carolina Alcoholic Beverage Control Commission decided, S.C., 211 S.E.2d 243, 1975, quoting Powers v. City of Aiken, 255 S.C. 115, 117, 177 S.E.2d 370, 371 (1970), we stated that the purpose of appeal is 'to determine if the lower court did something that it should not hav......
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