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September 30, 1949


The opinion of the court was delivered by: WATSON

This is a suit for damages for personal injuries sustained by the plaintiff who was struck on a highway in South Carolina by a truck when standing near a disabled bus of the defendant. Plaintiff contends the truck was caused to strike him because of the negligence of the driver of defendant's disabled bus in failing to comply with the South Carolina Motor Carrier Safety Regulations by placing flares and keeping lights from shining across the road into the face of oncoming traffic. The case was tried for the second time before the Court and a jury. The jury returned a verdict in favor of the plaintiff in the sum of $ 20,000.

The case is now before the Court on a Motion by defendant for an order setting aside the verdict and judgment and for entry of judgment in accordance with motion for directed verdict, and in the alternative for a new trial. At the oral argument, and in his briefs, counsel for the defendant did not press the motion for entry of judgment, but the motion was not withdrawn.

 In the present case there was substantial evidence in support of plaintiff's allegations of negligence of the defendant. Plaintiff alleged that the defendant's bus driver violated certain provisions of the Motor Carrier Safety Regulations of South Carolina, where the accident occurred, and that these violations were negligence which caused the injuries sustained by the plaintiff. The plaintiff himself and two other witnesses, the driver of the truck involved in the accident and his wife, testified that the defendant's bus driver, allowed bright lights to shine across the highway into the face of oncoming traffic, and failed to set out the required flares. Another witness, H. M. Tuten, testified that there was a bright light on the bus, just before Murdaugh came along in the truck. This was sufficient evidence from which the jury might properly find defendant negligent. It is the opinion of this Court that the verdict was not contrary to the clear weight of the evidence, nor can the Court find that the verdict was based on evidence which was false. The Court's denial of defendant's motion for a directed verdict was proper.

 In this case the verdict was not contrary to the clear weight of the evidence, did not result in a miscarriage of justice, and was not so shocking to the judicial conscience that it should be set aside and a new trial granted. To contradict plaintiff's evidence as to the negligence of defendant's bus driver, the defendant called a number of witnesses who testified that, at the time of the accident, the lights on the bus were not shining and that the flares were properly placed on the road before the accident occurred in which the plaintiff was injured. The evidence with reference to the questions of negligence was sharply conflicting. The defendant produced more witnesses who supported its contentions than the plaintiff produced in support of his. It is the function of a jury to reconcile conflicting testimony. Mann v. Funk et al., D.C.M.D. Pa. 1943, 50 F.Supp. 305, affirmed 3 Cir., 1944, 141 F.2d 260. These issues were submitted to the jury for that purpose, together with instructions for testing the credibility of witnesses, and in so doing to consider the interest, if any, of each witness. The credibility of witnesses is for the jury, not the Court. Carrano v. Red Star Transit Co., Inc., D.C.W.D. Pa. 1943, 58 F.Supp. 643. Further, it is not sufficient ground for a new trial that a verdict is merely against the preponderance of the evidence, but it must be so clearly against the evidence as to compel the conclusion that the verdict is contrary to right and justice. Burris v. American Chicle Co. et al., D.C., E.D.N.Y. 1940, 33 F.Supp. 104, affirmed 2 Cir., 1941, 120 F.2d 218.

 Defendant also contends that a new trial should be granted, for the reason that the verdict of $ 20,000 was capricious and grossly excessive. Uncontradicted evidence showed that, as a result of this accident, plaintiff sustained a serious fracture of his leg. This evidence disclosed a long period of painful treatment and loss of earning power in the past, and probably in the future. Under these circumstances, the verdict is not so capricious or grossly excessive as to demand a retrial.

 The defendant further contends in support of its motions that the Court erred in refusing defendant's points for charge numbered 4, 5, and 9. These points refer to the legal effect of the negligence of an intervening agency; in this case, the acts of W. H. Murdaugh, driver of the truck which struck the plaintiff. Defendant also lists as reasons in support of its motions that the Court erred in charging the jury on proximate cause and in failing to charge as to direct and remote cause, intervening and superseding cause, or as to the possible negligence of W. H. Murdaugh breaking the causal connection between any negligence of the defendant and plaintiff's injury.

 Even if defendant's points for charge numbered 4, 5 and 9 set forth a correct statement of the applicable South Carolina law on the subject of intervening cause, the points were properly refused in this case. There was no evidence in the case relating to any negligence or wrongful act on the part of W. H. Murdaugh, except the fact that the accident happened. Where there is not sufficient evidence to support a verdict on an alleged defense, the Court should withdraw the defense from the jury. Bunting v. Pennsylvania R. Co., 3 Cir., 1913, 203 F. 193; Kleinschmit v. Farmers Mut. Hail Ins. Ass'n of Iowa, 8 Cir., 1939, 101 F.2d 987. For this reason, defendant's points for charge numbered 4, 5 and 9 were properly refused, and the charge of the Court, insofar as it mentioned proximate cause or omitted to mention intervening cause, was proper.

 Defendant also contends that the Court erred in sustaining an objection to an offer of defendant to submit in evidence a document entitled 'War Shipping Administration, Report of Medical Examination of Merchant Seaman Prior to Signing on for a Voyage.' This was a report of a medical examination of Isaac Gaynor, the plaintiff, made on December 5, 1944, about a year prior to the accident and signed by an unidentified examining medical officer. Under a section of the report entitled, 'Notes, remarks, etc., regarding examination: Also dates and salient facts of re-examination made within a year.', the following entry appears in handwriting: '3/30/45. Requested release from service because of backache. X-ray (an undecipherable phrase). Release not recommended. (An undecipherable signature or initials)'.

 Plaintiff objected to the admission of this document, for the reasons that it was hearsay not admissible as an exception under the Federal Shop Book Rule; that it was improper impeachment to attempt to impeach irrelevant and immaterial facts; and that it was irrelevant. The defendant contends the document was proper to impeach the following testimony of Gaynor on cross-examination:

 'By Mr. McDevitt:

 'Q. Did you apply for discharge from the Merchant Marine in March, 1945? A. Oh. No, sir. I went back to the same company after I went to New York, and they paid me off for wrenching my back.'

 The question presented is, whether this document was admissible as an exception to the hearsay rule under the so-called Federal Shop Book Rule, 28 U.S.C.A. ยง 1732, which provides, in part, as follows: 'In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.'

 This report of the medical examination of Gaynor was not a record made for the systematic conduct of the business of the War Shipping Administration. The United States Supreme Court, in Palmer et al. v. Hoffman, 1943, 318 U.S. 109, 63 S. Ct. 477, 480, 87 L. Ed. 645, 144 A.L.R. 719, stated, inter alia: 'the fact that a company makes a business out of recording its employees' versions of their accidents does not put those statements in the class of records made 'in the regular course' of the business within the meaning of the Act. * * * If the Act is to be extended to apply not only to a 'regular course' of a business but also to any 'regular course' of conduct which may have some relationship to business, Congress not this Court must extend it.' The United States Court of Appeals for the District of Columbia, in New York Life Ins. Co. v. Taylor, 1944, 79 U.S.App.D.C. 66, 147 F.2d 297, 301, after citing Palmer v. Hoffman, supra, found the rule of the trial court in excluding certain hospital records proper, and stated, inter alia: 'To admit a narrative report of an event, or a conversation, or a diagnosis, as a substitute for oral testimony, is to give any large organization the right to use self-serving statements without the important test of cross-examination.' After a rehearing on this ...

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