Berry v. Greenville

• Decision Date: 03 November 1909
• Citation: 65 S.E. 1030,84 S.C. 122
• Parties: BERRY v. CITY OF GREENVILLE et al.
• Court: South Carolina Supreme Court

65 S.E. 1030

84 S.C. 122

BERRY v. CITY OF GREENVILLE et al.

Supreme Court of South Carolina

November 3, 1909

Appeal from Common Pleas Circuit Court of Greenville County; James W. De Vore, Judge.

Action by Mary C. Berry against the City of Greenville and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Wm. G Sirrine, for appellants. Jos. A. McCullough, for respondent.

WOODS J.

On the night of 4th of August, 1907, as the plaintiff was leaving the Baptist Church in Greenville on her way home, she fell and was injured from stepping into a hole on the sidewalk of McBee avenue in front of the church. She recovered judgment against the city of Greenville under the allegation that the hole was a defect caused by the neglect or mismanagement of the municipality.

The first exception alleges error in allowing counsel to ask plaintiff this question: "Tell the court and jury whether or not in walking from the steps leading from the church property to the sidewalk, whether you were exercising due care, or walking in a careless and negligent manner." The record shows that the plaintiff was not allowed to answer the question in this form; the court saying: "Let her state how she was walking." The answer: "I was walking as carefully as I usually walk. I was not walking reckless at all"--was competent; its meaning being that the plaintiff was not walking in any unusual way.

We can perceive no ground of objection to the testimony of Dr. Earle that he saw the hole in the street a day or two before the accident. The defendant's answer admitted that the depression or hole was in the sidewalk; the main issue being whether it was negligent to leave it there.

The charge to the effect that the plaintiff was only required to use ordinary care and prudence in securing the services of a physician was in accordance with the settled rule of law. Louisville, etc., R. Co. v Falvey, 104 Ind. 409, 3 N.E. 389, 4 N.E. 908; St L., etc., Ry. Co. v. Johnson (Tex. Civ. App.) 94 S.W 162; Fullerton v. Fordyce, 144 Mo. 519, 44 S.W. 1053; Illinois Cent. R. Co. v. Gheen, 112 Ky. 695, 66 S.W. 639, 68 S.W. 1087; McGarrahan v. N. Y., etc., R. Co., 171 Mass. 211, 50 N.E. 610; Chicago City Ry. Co. v. Saxby, 213 Ill. 274, 72 N.E. 755, 68 L. R. A. 164, 104 Am. St. Rep. 218, and note; 13 Cyc. 77. The court did not charge that the defendant would be responsible for injuries to the plaintiff not resulting from the tort...