Lancaster v. City of Columbia

• Decision Date: 06 April 1916
• Docket Number: 9373.
• Citation: 88 S.E. 463,104 S.C. 228
• Parties: LANCASTER ET AL. v. CITY OF COLUMBIA.
• Court: South Carolina Supreme Court

88 S.E. 463

104 S.C. 228

LANCASTER ET AL. v. CITY OF COLUMBIA.

No. 9373.

Supreme Court of South Carolina

April 6, 1916

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Action by E. M. Lancaster and another against the City of Columbia. From a judgment for plaintiffs, defendant appeals. Affirmed.

C. S Monteith, of Columbia, for appellant.

W. Boyd Evans, of Columbia, for respondents.

GAGE J.

Action for tort; verdict for the plaintiff for $1,000; appeal by the defendant.

History: A lady 32 years old was walking along the pavement on Bryan street at night. She is alleged to have caught her foot underneath the root of a tree, to have fallen and broken her right arm.

The testimony is not printed by recital, but in full by question and answer. There is much of it irrelevant to any issue made by the appeal. There has thus been a clear violation of the rule of the court.

There are eighteen exceptions, where at most six would have embraced every issue made, for the appellant's attorney had commendably grouped them under six heads.

The exceptions will not be considered in order, or by number. The first is that incompetent and irrelevant testimony was admitted. It is not suggested what particular testimony was thus admitted, and the exception is in this respect faulty but the argument indicates it was in allowing two witnesses to testify that the locus was dark.

The complaint alleges that the accident occurred at 8:45 o'clock p. m. There was no allegation and no testimony that the street was insufficiently lighted; all the testimony on the subject was that a tree, betwixt the light on the other side of the street and the locus, caused a shadow on the locus. It was not and could not be claimed that the presence of trees and lights, and therefore shadows, on a street, was a negligent act. The object of the testimony was to explain why the plaintiff did not see the locus.

Two exceptions charge that the court erred in declining to direct a verdict for the defendant on the ground that the plaintiff was violating an ordinance when she fell. Like the other exceptions, this one does not indicate what particular ordinance was being violated. And we again gather from the argument that an ordinance of the city requires a pedestrian to go to the right, and that when the plaintiff fell she was going to the left. The ordinance was manifestly made to prevent collisions betwixt persons moving on the same pavement in opposite directions. There was no collision in the instant case.

One exception, the fifteenth, charges that the court erred in refusing the third request of the defendant. That request was as follows:

"I charge you that unless you believe by the preponderance of the testimony that there was a space or hole under the root, and that this space or hole was due to the neglect or mismanagement of the city, you cannot find a verdict in favor of the plaintiff."

The cause of action was bodily injury resulting from a defect in the street. It is true the complaint alleged that there was a vacant space underneath the root, and that the plaintiff caught her toe in that space; and the plaintiff at one place so testified. But the defect was a protruding root, three inches above ground. It was immaterial and only evidentiary that the root had a space underneath it, and that the plaintiff fell by getting her toe underneath the root, instead of striking her toe against it. The lack of a space underneath it would not have made the root ideal. The plaintiff testified: "I stumped my foot, or hooked my foot under the root." If the plaintiff stumped her foot against the root and fell, and the root was the real defect in the street, then it was not of the essence of the case that she fell by thrusting her foot underneath the root. The plaintiff's whole case was not dependent upon whether "there was a space or hole underneath the root," and the third request was made on that hypothesis.

One exception charges error in a modification of the defendant's eighth request. The request and modification were as follows:

"Eighth. If you believe from the evidence that there was an adequate and safe way on the sidewalk, notwithstanding the alleged defects, it was the duty of the plaintiff to use due care to avoid defects, and, if she has failed to satisfy you by a preponderance of the testimony that she did use due care, your verdict should be for the defendant."

The modification was that the jury "must take into consideration all the circumstances surrounding the occasion."...