Hutchinson v. City of Florence
| Decision Date | 09 December 1938 |
| Docket Number | 14786. |
| Parties | HUTCHINSON v. CITY OF FLORENCE. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Florence County; M. M Mann, Judge.
Action by Elizabeth Hutchinson against the City of Florence to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.
Affirmed.
J. D Gilland and G. Badger Baker, both of Florence, for appellant.
McEachin & Townsend, of Florence, for respondent.
This is an action to recover damages for personal injuries. The plaintiff alleged that on the morning of December 16, 1936 she was proceeding along McFarland toward Cheves Street in the City of Florence, when "suddenly, unexpectedly, and without warning", the bicycle on which she was riding "dropped into a hole in the pavement three and one-half to four inches deep on her right-hand side of the street"; that she was thrown approximately twelve feet, falling upon her left shoulder and side; that her collarbone was shattered, and that she was seriously and permanently injured and disfigured. It was also alleged that plaintiff's injuries were not due to any act of contributory negligence on her part, but were the direct and proximate result of the negligence and carelessness of the defendant in maintaining a defective street in the following particulars:
"In allowing a dangerous hole to exist and remain open and uncovered in a much traveled street under its sole control.
In leaving a deep hole open and unguarded in a much traveled street.
In failing to warn the plaintiff and other cyclists by signs or lights of the presence of a deep hole in the pavement of McFarland Street.
In allowing water to so cover and conceal an open hole in McFarland Street as to make it impossible for the plaintiff and others using the said street to avoid falling in the said hole.
In failing to provide the plaintiff and other persons with a safe place to operate bicycles on McFarland Street, a public thoroughfare of the City of Florence.
In failing to keep its streets, and McFarland Street, in particular, in an adequate state of repair so as to avoid injury to the plaintiff and other users thereof.
In creating and allowing a situation of danger to exist in a public street when it knew or should have known that such situation existed and had existed for a long period of time.
In failing to cover or repair the said hole or to place any warning thereon after having been notified on several occasions of its dangerous condition."
The defendant denied the material allegations of the complaint, and alleged that the personal injuries, if any, suffered by the plaintiff were due to her own carelessness and negligence as the proximate cause thereof. The following defense was also pleaded:
The trial of the case resulted in a verdict for the plaintiff for $7,500, and this appeal followed.
As stated and argued by counsel for the appellant, seven questions are presented for our decision, the first of which is whether the presiding judge committed error in refusing to direct a verdict for the defendant, the motion therefor being made upon the grounds that respondent's injuries were proximately caused by her own negligent acts or that she negligently contributed thereto.
We deem it unnecessary to review at any length the testimony pertinent to this issue; but a careful reading of it reveals that Judge Mann was entirely right in his conclusions and holdings thereabout. There was evidence to the effect that there had been considerable rain for several days prior to the accident; that the hole in which the front wheel of plaintiff's bicycle fell was "level full of water", and that there was some water running down the curb in a thin sheet, rendering the street black and the hole invisible. One of plaintiff's witnesses, whose place of business was near the point of accident, testified that the hole in question was of considerable size-about thirty-three by twenty-four inches and from four to four and one-half inches deep; that it had been there for a considerable length of time, and that he had notified the city authorities of its existence, but nothing was done about it by them until after the accident. He further stated that the hole was in the line of travel that bicycles were required to take on the right-hand side of the street, and that at the time of the accident the plaintiff, at whom he was looking, was riding where it was proper and permissible for her to do so. The plaintiff herself testified that she was not riding at a fast rate of speed at the time of the accident; that she was looking ahead of her in the direction in which she was going, but did not see the hole and did not know it was there until she went into it and was thrown from her wheel and injured. There was some testimony offered by the defendant for the purpose of showing that if plaintiff had been looking where she was going there was nothing to prevent her from seeing the hole in the street. This, however, as held by the trial Judge, merely made an issue of fact, which was not for the Court. The question of contributory negligence is generally one for the jury, and under the testimony in this case, it was clearly so. There was no error, therefore, as complained of. See Lynch v. City of Spartanburg, 139 S.C. 295, 137 S.E. 743; Patrick v. City Council of Charleston, 164 S.C. 507, 162 S.E. 749.
The appellant also charges the trial judge with error "in refusing to permit full cross-examination of the plaintiff as to (a) the variance between the allegations of plaintiff's complaint as to plaintiff's injuries and the actual testimony bearing thereon, and (b) plaintiff's exercise of her powers of observation for her own care at the time and place of the accident."
As to (a), it was alleged in the complaint that in the fall from her bicycle, the collarbone of plaintiff was shattered and other bones of her neck and arm were broken. On trial of the case, she was cross-examined by counsel for the appellant with reference thereto, who sought to show that she had not received all of the injuries alleged in the complaint. In other words, that there was a variance thereabout between her allegations and her testimony. She stated, in reply to questions asked, that no bone was broken except her collarbone; that she did not know what was put in the complaint, as she had not read it, but that she did not say other bones, other than her shoulder. At this point, the Court observed that a party is not responsible for the technical language of his counsel, and that they would go no further into that. The appellant argues that this was error, and that its counsel should have been permitted to proceed with such cross-examination, as it "would have been productive of material for the jury to have considered as to the credibility of all of respondent's testimony." We do not think that appellant may properly complain. The cross-examination of the respondent by defendant's attorney, as well as his cross-examination of other witnesses, fully presented to the jury what he was attempting to show, to wit, that all of plaintiff's alleged injuries did not find support in the evidence, and that this was a matter for their consideration as affecting "the credibility of all of" her testimony. We are satisfied that the jury, composed of twelve intelligent men, fully understood this to be its purpose. It would seem, therefore, that counsel could not have pursued this line of cross-examination further without useless repetition. For these reasons, and for the reason stated by the Court, we think that the trial Judge, in the exercise of a wise judgment, correctly ruled as he did.
Contention (b) is also without substantial merit, for the reasons, if for no other, that appellant's counsel was permitted to cross-examine the plaintiff fully as to the exercise of her powers of observation, etc. She was questioned closely as to her knowledge and observation of the condition of McFarland Street, her failure to notice a certain driveway by which she rode, her failure to notice the curve of the crown of McFarland Street, her failure to notice that Gaillard was a one-way street, her failure to observe other holes in the streets of Florence or to notice any depressions which would hold water at or near the place where she worked, etc. We approve the ruling of the trial Judge. In keeping such examination in legitimate bounds, we cannot say that he abused his discretion.
The presiding Judge, with regard to the defendant...
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