(dissenting):
This Court has previously held that granting or denying a new trial upon the facts rests within the discretion of the trial judge. Furthermore, his discretion will not be disturbed unless his finding is wholly unsupported by the evidence, or the conclusion reached has been controlled by an error of law. South Carolina State Highway Department v. Clarkson, 267 S. C. 121, 226 S. E. (2d) 696 (1976). In Clarkson, we stated the following:
“An order granting a new trial on factual grounds is not appealable. But the question of existence or nonexistence of evidence is one of law; and to that extent such an order is subject to our review. . . . Our inquiry here must, therefore, be limited to the question of whether there was any evidence from which the jury might reasonably have inferred that respondent’s [plaintiff’s] injuries were proximately caused by negligence of the appellant."JJ that question is answered in the affirmative the appeal must be dismissed, for this court has no power to weigh conflicting evidence in a law case. But if there was no evidence of actionable negligence on the part of the appellant, there was no conflicting evidence to be weighed, and the order granting a new trial on the ground stated by the trial judge would be erroneous as a matter of law.” [267 S. C. at 127, 226 S. E. (2d) at 697-698, quoting Mims v. Coleman, 248 S. C. 235, 149 S. E. (2d) 623 (1966). Emphasis added].
In the instant case, the highway patrolman involved in the collision testified. The plaintiff testified also; however, *136she was unable to recount any of the events surrounding the accident because of a loss of memory, she having been severely injured in the collision. Although she was in no condition to give testimony contradictory to that of the patrolman, there were other witnesses for the plaintiff, and they presented evidence from which the jury might reasonably have inferred that the plaintiff’s injuries were proximately caused by the defendant’s negligence or recklessness.
Sergeant James Caulder of the State Highway Department testified that, upon Caulder’s arrival at the scene of the accident, the highway patrolman involved therein, Mr. Willis, stated that he did not have his blue light or his siren turned on prior to impact with the plaintiff. Willis’ testimony on direct examination was to the effect that he had made a U-turn to pursue a red Mustang in order to clock that vehicle for a possible speeding violation and that, while in pursuit of the Mustang, the plaintiff drove her vehicle from a private driveway directly in front of the Highway Patrol car.
Sergeant Caulder’s testimony was corroborated by Lieutenant R. M. Sullivan of the Highway Department. Lieutenant Sullivan, like Sergeant Caulder, arrived at the scene after the collision. He testified that Willis stated to him that neither the blue light nor the siren was in operation prior to the time of impact. Sullivan further testified that Willis stated at the scene that he had attained a speed of 60 to 65 miles-per-hour just prior to hitting the plaintiff’s vehicle. It is an undisputed fact that the posted speed limit for the area where the accident occurred is 45 miles-per-hour.
On direct examination, during the defendant’s case in chief, Willis admitted that he had not turned on either his blue flashing light or the siren as he was pursuing the red Mustang. Additionally, Willis testified that he was going from 55 to 60 miles-per-hour in the 45 mile-per-hour zone at the time he collided with the plaintiff.
On the basis of this evidence, the court properly charged the jury with respect to several statutes in suuport of the *137plaintiff’s contention that Willis, as the defendant’s agent-operator of the Highway Patrol vehicle, was driving in violation of the speed limit without utilizing the required warning signals for an emergency vehicle.1
The defendant further contends that the trial judge was controlled by an error of law in that the evidence as a whole pointed to the contributory negligence of the plaintiff as a matter of law. I do not agree.
The testimony adduced at the trial was to the effect that Willis made the U-turn across the median of the highway into the southbound lane in order to reverse direction and pursue the red Mustang. From the point of the U-turn to the point where the plaintiff entered the southbound lane of the highway the distance is approximately 352 feet. Moreover, Willis was accelerating his vehicle as he made the U-turn and began his chase of the Mustang reaching a speed of 55 to 65 miles-per-hour when he first saw the plaintiff’s vehicle entering the highway. Although it cannot be precisely determined how much time elapsed between the U-turn and the collision, it is inferable from the testimony that only a few seconds intervened.
In the light of this evidence it cannot be held that the plaintiff was contributorily negligent as a matter of law in failing to keep a proper lookout or in failing to yield the right of way to Willis’ vehicle. In the instant case all events occurred almost instantaneously, and the U-turn added an element of the unusual to the facts. Upon considering the evidence in the case as a whole, I am of the opinion that the trial judge was correct in concluding that the case required submission to the jury. Since there existed evidence requir*138ing such submission, it is evident that the trial judge did not err in granting a new trial on the grounds stated.
For these reasons I would affirm.
Lewis, C. J., concurs.The court charged the following statutes, among others: S. C. Code (1976) § 56-5-760 (“Operation of authorized emergency vehicles; privileges and conditions”); § 56-5-770 (“Signals in connection with operations of authorized emergency vehicles”); § 56-5-780 (“Duty of driver of authorized emergency vehicle”); § 56-5-4700 (“Audible signal devices and signal lamps for authorized emergency vehicles, school buses and police vehicles; restrictions on use; effect of use”).