Watford v. South Carolina State Highway Department

Ness, Justice: The sole issue presented on appeal is the propriety of an order granting a new trial to the plaintiff-respondent. The action arose from a collision on a four lane highway in Florence County between the respondent’s automobile and a Highway Patrol vehicle. The patrolman had made a U-turn in order to pursue a third car for a possible speeding violation when the respondent drove her automobile from a private driveway into the path of the Highway Patrol vehicle. The distance from the point of the U-turn to where she entered the highway is approximately 352 feet. There was no testimony that the respondent stopped her car and/or looked prior to entering the highway. The officer testified that the first time he saw her vehicle was when he applied his brakes to avoid the collision. Respondent was severely injured in the accident and suffered a loss of memory. Her testimony concerning the details of the incident was therefore incomplete. The jury returned a verdict for the defendant-appellant. Respondent then moved for a new trial on the grounds that the verdict was contrary to the evidence and was unfair under all the facts and circumstances. The motion was granted. We reverse. A trial judge has the authority to grant a new trial when he finds the verdict to be contrary to the evidence. “Ordinarily, the order of a trial judge granting a new trial on the ground that the verdict is contrary to the evidence is nonappealable. However, when it is manifest that the order for the new trial is founded upon fundamental error of law, it is axiomatic that this Court may review the decision.” S. C. State Highway Department v. Terrain, Inc., 267 S. C. 186, 195, 227 S. E. (2d) 184 (1976). [133] An abuse of judicial discretion, appearing in the record as a matter of law, warrants setting aside the grant of a new trial. Jones v. Thomas and Hill, Inc., 265 S. C. 66, 216 S. E. (2d) 871 (1975) ; Gray v. Davis, 247 S. C. 536, 148 S. E. (2d) 682 (1966). A trial judge may not invade the province of the jury or substitute his verdict for theirs. Turner v. Carey, 227 S. C. 298, 87 S. E. (2d) 871 (1955). In explaining his reasons for setting aside the verdict, the trial judge made factual findings unsupported by the evidence. He concluded that the patrol car and third vehicle, “Probably met and passed each other in the vicinity of the driveway from which the plaintiff entered the highway. Obviously, she must have been there at the time but neither the patrolman nor the couple in the Mustang1 noticed her.” The record is devoid of evidence that the cars passed in the vicinity of the driveway or that the respondent was present but unobserved. The judge’s analysis of the incident is unwarranted; he said: “There is no testimony as to whether the plaintiff stopped or did not stop before entering the highway. The officer did not see her until she was well on the roadway. The writer is hesitant to assume that the plaintiff failed to stop. Moreover, had the plaintiff stopped and looked in both directions, the collision might have occurred exactly as it did. She would have seen the southbound roadway clear for such a distance as would have allowed her more than sufficient time to cross it and enter the northbound roadway.” The trial judge commented as to the time frames just prior to the accident and stated : “[i]immediately before the patrolman turned left into the southbound lane, the plaintiff might well have been sitting, looking and checking both lanes the last time . . .” [134] ■There was no testimony to support his time analysis or that she stopped, looked or checked before proceeding onto the highway. “The officer did not see the plaintiff’s car stopped at the entrance to the highway. Neither did he see her entering the highway. The reason for this is probably the fact that, as he testified, he was watching the red Mustang.” The trial judge had previously recognized the non-existence of any testimony indicating whether the respondent stopped, which is inconsistent with the finding that she in fact did stop. Furthermore, the officer testified regarding his first observation of the respondent’s vehicle: “Q. When exactly did you see the car? When was the first time you saw the car ? “A. When I applied my brakes. “Q. And where was the car? “A. The car’s front hood was out blocking the right lane of traffic that I was in. “Q. The front hood? “A. Yes, sir, left front fender. “Q. And where was the back of the car ? “A. I don’t know. I didn’t see it. “Q. Where would you estimate it was? “A. It was, evidently in the private drive.” (Tr. pp. 82-83, ff. 327-329). The trial judge’s “explanation” for his granting a new trial is based on factual conclusions which have no evidentiary support. His discretionary power to grant a new trial is “founded upon the facts, the evidence, the witnesses, the trial circumstances, the verdict and the judge’s view of them.” South Carolina State Highway Department v. Townsend, 265 S. C. 253, 258, 217 S. E. (2d) 778 (1975). Where the trial judge’s reasons for granting a new trial are without evidentiary support, the new trial or [135] der is erroneous as a matter of law. South Carolina State Highway Department v. Clarkson, 267 S. C. 121, 226 S. E. (2d) 696 (1976). We reverse the trial court’s order granting a new trial and reinstate the jury verdict. Littlejohn and Gregory, JJ., concur. Lewis, C. J., and Rhodes, J., dissent. Footnotes [1] Third vehicle.