Harrison v. Gallivan Const. Co.

■ The opinion of the Court was delivered by Mr. Chile Justice; Stabler. In this case we concur in so much of the opinion prepared by Mr. Justice Baker as holds that there was sufficient testimony to take the case to the jury on the question of the appellant’s actionable negligence. The history of the case is fully set forth in his opinion. We are unable to concur in the conclusion reached by him that the respond *307 ent was guilty of contributory negligence as a matter of law. When the appellant barricaded the sidewalk, it constructed a walkway alongside the street, which the public was impliedly invited to use, and which the public did use. The appellant admits that it placed the boards or timbers against the street curb, at which point the respondent was injured. While it is asserted that these boards were thus placed to enable the appellant’s trucks to mount the curbing and use' the alleyway, the evidence shows that the appellant could not escape the knowledge that this temporary way, arranged by it for the use of its trucks, was being used by the public to cross from the street to the sidewalk, this being the most direct route from the end of the walkway to the sidewalk curb. Pedestrians had been walking across these boards for weeks prior to the day on which Mrs. Plarrison, the respondent, received her injury. The testimony, not only of Mrs. Harrison, but of several other witnesses, tends to show that the board on which she stepped in attempting to reach the sidewalk, was warped. The respondent says that the boards— variously stated by witnesses to be from two to six in number — were placed loosely in the street. That as she placed her foot on the offending board it gave way, and caused her fall, resulting in a fracture of both bones near her ankle. After she had fallen, she noticed that the board was warped, but the warped condition could not be easily seen because it was covered with mud. It had been raining in Greenville for several days prior to the accident, and had rained on the morning of the accident. The respondent said, “it was mighty wet and muddy,' the mud had so oozed under these boards, to all appearances looking at them they were secure and you could not see the warped condition, the waste from the street.” Other witnesses testified that the board was warped on one end and that the boards were old, rotted, and worn, and that they were muddy, loosely.placed, and uneven. The appellant strongly argues that Mrs. Harrison was guilty of contributory negligence, as a matter of law, in *308 stepping upon the board which she claims was warped. The testimony does show that she had walked across these planks frequently in going to and from her work, and for this reason it is urged that, being familiar with the situation, she knew or should have known of their defective condition. She testified, however, that she did not know the board was warped, and that she did not discover its warped condition until after she had fallen, and looked to see what had caused her to fall. She said that from all appearances they were secure, and that the defect was hidden by the accumulation of mud. In our opinion, the evidence is susceptible of more than one reasonable inference on the issue of contributory negligence. The questions of actionable negligence, contributory negligence, and proximate cause, were for the jury’s determination, under the testimony. In the case of Lynch v. Spartanburg, 139 S. C., 295, 137 S. E., 743, the city contended that the plaintiff was guilty of contributory negligence, as a matter of law, in stepping backward upon a grating of a water drain without first looking, it being broad daylight, and the plaintiff admitting that he might have seen the hole if he had looked. The Court, affirming a judgment for the plaintiff, stated that while he was held to exercise due care in his use of the streets, he had a right to assume that the defendant had discharged its duty in its exercise of ordinary care in the keeping of its streets in a reasonably safe condition. And further held, that “the Court could not say, as a matter of law, that the plaintiff was required to look about him and examine the street before stepping backwards, and that in failing to> do so he was guilty of 'contributory negligence, or that what he did was not what a man of ordinary intelligence and prudence would have done under like circumstances.” The appellant assigns error to certain portions of the charge given by the presiding Judge to the jury. *309 It complains that this instruction was given: “While it is true that a person using a public street or sidewalk must in so doing exercise ordinary care for his or her own safety, yet I charge you also that such person using such street or sidewalk has the legal right to assume that they are safe for travel and no duty is imposed upon such person to examine such street or sidewalk tO' see if there is a defect or obstruction therein.” We see no error in this instruction. It is based upon the principle announced in Lynch v. Spartanburg, supra. In addition to this, upon the request of the appellant, the Court charged: “While it is true that a pedestrian has the right to assume that the streets and sidewalks of a city are in a safe condition, yet, a pedestrian cannot close his or her eyes and blindly walk into a known danger. If a pedestrian knows of a danger or defect in a street and if the danger is open and obvious, then a traveler would be guilty of contributory negligence if they did not observe ordinary care to avoid a known danger.” It is next contended that the Court fell into error in stating the law with respect to the duty of a contractor, who had been given a permit by a city to erect or repair a building on the streets of a city. The instructions on this phase of the case are in line with the rule announced in Walsh v. Dawson Engineering Co., 159 S. C., 425, 157 S. E., 447. We deem it hardly necessary to set out verbatim the excerpts from the charge on this point. We have read with great care the entire charge, and have reached the conclusion that the Judge correctly stated the law. We think that this may be made evident by this quotation from his charge, given upon the request of the appellant: “While the law requires a contractor in the erection of a building upon a public street to use due care to keep the streets and sidewalks in safe condition for travelers, yet, a corresponding duty evolves upon the traveler to exercise due care to avoid danger. Where a person has the choice of two ways or methods to do a particular thing, one of which is safe and *310 the other being attendant with more or less danger which is open and obvious, if such person selects the unsafe way and is injured in so using such unsafe way, such person could not recover damages for injuries sustained while using the unsafe way.” Error is assigned because the Court overruled a motion for a new trial upon the ground that the verdict is excessive. It is contended that the evidence of damages to the respondent does not justify a verdict of $7,500.00, which was found by the jury. Dr. C. O. Bates, who attended the respondent for two or three months following her accident, gave the only medical testimony in the case. In explaining the nature of the respondent’s-injury he said: “She had both bones of the leg broken, the fracture extending into the ankle joint,"and these bones were broken into a number of small pieces, we call it comminuted fracture, that means a number of small pieces of bone, and this fracture extended into’ the covering of the ankle joint, into the joint itself; the foot was displaced about an inch and a half backwards and laterally; there was a good deal of swelling and considerable discoloration around the ankle and about this foot up on the leg.” He further stated that while a good result had been obtained from the surgical operation made necessary, the respondent would always have a weak ankle, and that a further operation might become necessary in order to chisel out an excess bone formation at the ankle joint. While the jury rendered a full verdict, we are not disposed to say from the evidence that the trial Court abused its discretion in overruling the motion for a new trial. The injury to the respondent, who was a woman forty-seven years of age, and who earned her own living, was painful and serious, with every likelihood of its giving future trouble. Judgment affirmed. Messrs. Justices Bonham and Eishburne concur. Mr. Justice Baker dissents. *311 Mr. Justice Carter did not participate on account of illness.