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2008-UP-116 - Miller v. Ferrellgas

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Janet Miller, Respondent,

v.

Ferrellgas, L.P. Inc., and Kenneth W. Ellis, Appellants.


Appeal From Beaufort County
 R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No. 2008-UP-116
Heard January 8, 2008 – Filed February 13, 2008   


REVERSED AND REMANDED


Ernest Mitchell Griffith, of Beaufort; Stephen L. Brown, and Jeffrey J. Wiseman, both of Charleston, for Appellants.

James H. Moss, of Beaufort, for Respondent.

PER CURIAM:  Janet Miller brought suit against FerrellGas L.P., Inc. and Kenneth W. Ellis (collectively FerrellGas) after sustaining injuries in an automobile accident.  The trial court granted Miller a directed verdict on the issue of negligence, and the jury awarded her $785,000 in damages.  FerrellGas appeals.  We reverse and remand.

FACTS

On June 15, 2001, Ronald Owens was driving Miller to Hilton Head Island to have an MRI for an injury she had sustained in a work-related accident six days earlier when they were involved in an accident with a truck driven by Kenneth Ellis, an employee of FerrellGas.  While traveling on Highway 170, Owens and Miller approached a caution light at the intersection of Highways 802 and 170 where the truck driven by Ellis was stopped at a stop sign.  Ellis testified he stopped at the stop sign and looked both ways.  A road construction sign, which had not been there earlier in the day, obstructed his view to the left.  Ellis looked to the right again and then eased out to look around the sign.  When he did not see anything, he pulled out into the intersection where his truck collided with the automobile in which Miller rode.  Ellis defended the actions he took on the day of the accident and testified he was not the cause of the traffic accident. 

Miller brought the present action seeking damages for the injuries she allegedly sustained in the accident.  At the close of FerrellGas’s case, the trial court granted Miller’s motion for directed verdict on the issue of negligence.  Furthermore, the court noted the difficulty a motorist would face in this situation and stated, “I don’t know what you’re supposed to do.  Are you supposed to get out of the car and go to the front and check?  That’s the dilemma here.”  After deliberations, the jury awarded Miller $785,000 in damages.  The trial court denied FerrellGas’s post-trial motion.  This appeal followed.

LAW/ANALYSIS

FerrellGas argues the trial court erred in granting Miller a directed verdict motion on the issue of negligence.  We agree. 

When reviewing the grant of a directed verdict, this court must view the evidence and all reasonable inferences therefrom in the light most favorable to the party against whom the verdict was directed.  Heyward v. Christmas, 357 S.C. 202, 207, 593 S.E.2d 141, 144 (2004).  If the evidence is susceptible to more than one reasonable inference, the case should have been submitted to the jury.  Id.  The court is not concerned with the weight of the evidence, but whether there is any evidence from which the jury is warranted in making a finding.  Washington v. Whitaker, 317 S.C. 108, 113-14, 451 S.E.2d 894, 897-98 (1994).  Furthermore, neither the trial court nor the appellate court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence.  Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 463, 629 S.E.2d 653, 663 (2006).  “The appellate court must determine whether a verdict for a party opposing the motion would be reasonably possible under the facts as liberally construed in his favor.”  Id. 

In the present case, there is no evidence indicating Miller, as a passenger in the traffic accident, was negligent.  Therefore, the issue before us is whether the record contains any evidence showing Ellis was not negligent. 

Ellis was required by law to stop at the intersection of Highways 802 and 107.  See S.C. Code Ann. § 56-5-2330(b) (2006) (requiring drivers to stop at stop signs with a view of approaching traffic before entering the intersecting roadway).  After coming to a stop, Ellis was then required to “yield to the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.”  Id. 

The South Carolina Supreme Court has previously addressed the duty of a driver crossing over a highway, such as presented in this case, by explaining:

When a motorist on an unfavored highway approaches a through highway he must bring his car to a stop for such a time and in such a position as to be able to observe the traffic conditions on the favored highway and govern his conduct accordingly.  The duty to yield the right of way does not mean that the driver on the unfavored highway must refrain from crossing the favored highway whenever another vehicle is approaching thereon regardless of how far distant. 

Warren v. Watkins Motor Lines, 242 S.C. 331, 340, 130 S.E.2d 896, 901 (1963). 

The court explained that travelers on both the favored and the unfavored highways have a duty to use ordinary care in keeping a proper lookout for vehicles approaching the intersection.  Id.  at 341, 130 S.E.2d at 901.  The court held, “If there is a conflict in the testimony as to whether a car on the through highway was approaching so closely as to constitute an immediate hazard or if the conclusion to be drawn therefrom is doubtful and uncertain, the Court will not decide the question as one of law and it must be submitted to the triers of the fact.”  Id.  at 341, 130 S.E.2d at 901-02. 

In Cope v. Eckert this court reiterated the duties set forth in Warren when a driver is crossing or turning over a favored roadway.  284 S.C. 516, 327 S.E.2d 367 (Ct. App. 1985).  This court explained, “[I]f there is no traffic approaching so near as to constitute an immediate hazard, the driver on the unfavored highway has a right to enter the intersection, and it then becomes the duty of those approaching the intersection on the favored highway to yield the right of way to him.”  Id.  519, 327 S.E.2d at 369.

In the present case, Owens testified that as he approached the caution light of the intersection, he was traveling between forty and forty-five miles an hour.  He saw Ellis’s truck stopped at the stop sign.  He claimed that when Ellis pulled out in front of his vehicle, he was about fifty to seventy-five yards away and had “no time to react.”  

Ellis testified he was familiar with this intersection and had driven through it earlier that day.  However, the scene at the intersection had changed when he approached for a second time because a construction sign was blocking his view.  He claimed that even with the construction sign obstructing his view, he took precautions to ensure the road was clear when he pulled into the intersection.  He stated he came to a full stop when he approached the intersection and looked to his left and his right.  Then he eased out to look around the sign and did not see anything coming, so he pulled into the intersection. 

Under the precedent of Warren and Cope, we find a jury issue was created based on the facts of this case.  Specifically, we believe the record contains some evidence from which a jury could infer Ellis was not negligent, thus creating more than one inference with regards to negligence.  A jury could reasonably infer Ellis proceeded into the intersection with enough caution and without perceiving Owen’s vehicle as an immediate threat.  Though we note the great amount of evidence against FerrellGas, it is not our duty to weigh evidence but to look for any evidence in the trial record from which a jury could make more than one inference.  Because a jury could have inferred Ellis was not negligent, the trial court improperly directed a verdict against FerrellGas on the issue of negligence.  Accordingly, we reverse the trial court’s grant of a directed verdict and remand this case for a new trial. 

REVERSED AND REMANDED.[1]

HUFF and PIEPER, JJ., and CURETON, A.J., concur. 


[1]  As we have remanded for a new trial, we need not address FerrellGas’s remaining issues.  See Murphy v. Jefferson Pilot Communications Co., 364 S.C. 453, 465 n.3, 613 S.E.2d 808, 814 n.3 (Ct. App. 2005) (declining to address evidentiary issue in action remanded for new trial).