Usletten v. City of Brookings

• Decision Date: 17 February 1932
• Docket Number: 6975.
• Parties: USLETTEN v. CITY OF BROOKINGS et al.
• Court: South Dakota Supreme Court

240 N.W. 851

59 S.D. 477

USLETTEN v. CITY OF BROOKINGS et al.

No. 6975.

Supreme Court of South Dakota

February 17, 1932

Appeal from Circuit Court, Brookings County; W. W. Knight, Judge.

On rehearing.

Judgment affirmed.

For former opinion, see 235 N.W. 705.

Cheever Collins & Cheever, of Brookings, and Bogue & Bogue, of Parker, for appellants.

Hall & Eidem, of Brookings, for respondent.

ROBERTS J.

The decision of this court on a former appeal, reported in 53 S.D. 644, 222 N.W. 268, sustained the order of the trial court overruling demurrer to the complaint. After trial in the circuit court on the merits and decision on appeal in this court, 235 N.W. 705, the defendants made application for rehearing, which was granted.

This action was instituted for the recovery of damages for personal injuries sustained by the plaintiff. Upon the occasion in question the plaintiff met a friend, Ben Togsed and they stopped to converse. Plaintiff leaned back against an iron railing which was intended to protect an opening in and along the inner side of a public sidewalk in the city of Brookings which afforded access to a cellar. The railing gave way at the point where it had been broken and fastened with wire, and plaintiff was precipitated into the opening and injured. On cross-examination, plaintiff testified: "I may have seen the rail the day before the accident but I didn't know it was laying there loose. I never sat on that same rail that gave way with me on May 2nd, 1927, before that time. I never saw any wire fastened to that rail which gave way with me on May 2, 1927. I never looked to see whether there was any wire on that rail or not. My eyesight was good then. It is pretty good yet. I have always enjoyed pretty good eyesight until I got hurt. It is pretty good yet. Before I was hurt on May 2nd I had to use glasses to read but for mechanical work I did not need glasses prior to the second of May, 1927. That wire is large enough so I can see it without any trouble now. If that top rail had been wrapped with wire about the size of the wire Exhibit 3 and if I looked at it I wouldn't have had any trouble seeing it. I wasn't looking for that wire. If I had looked I could have seen it. I didn't look. Because I didn't look I didn't see it. I never noticed the east end of the rail at all. I couldn't tell whether any portion of the bracket holding the east end was broken at all. If I had looked at it and it was broken I could have seen it, but I didn't pay any attention to it. I knew when I leaned up against that rail that if it was loose, I would know that I would fall. If I knew it was a loose railing, I knew that if I fell in there I was liable to get hurt. I never measured the depth of that areaway. I knew it was quite a hole. I knew pretty near how deep it was. I knew when I leaned against that guard rail that the thing which prevented me from being precipitated into the areaway was the guard rail itself, but I didn't know it was loose. I knew if it was loose I knew I would go into there. I never looked to see if it was loose before or after I was hurt."

Defendants at the close of plaintiff's case, as well as at the conclusion of the evidence, moved for a directed verdict, which was denied. Counsel for the defendants assert that the testimony of the plaintiff conclusively shows that the plaintiff was contributorily negligent, and that a verdict should have been directed by the trial court in favor of the defendants. It is their contention that, if the plaintiff had used his faculties, he would have discovered not only the fact that the flange which supported the end of the rail which gave way was broken, but he would have discovered that the wire which had been used to bind the guard rail to the broken bracket on the iron post was loose, and that, if plaintiff had used his eyes for his own safety and preservation, he would never have been precipitated into the opening. Counsel urge that plaintiff's conduct did not conform to the required standard of care and prudence recently enunciated by this court in the cases of Descombaz v. Klock, 235 N.W. 502, 504, and Taecker v. Pickus et al., 235 N.W. 504, 505. The circumstances are entirely different. What is ordinary care under one state of facts may not constitute the same care under another or different state of facts. In other words, a careful and prudent person must make such observation as the circumstances reasonably require. The greater and more imminent the danger, the greater must be the care to be exercised.

In each of the cases referred to and relied upon by the defendants, the plaintiff sought the recovery of damages for injuries received in an automobile accident. In the first case cited, Descombaz v. Klock, the plaintiff, repairing a tire on the highway in front of a standing automobile, was held contributorily negligent in failing to step to the edge of the highway when he saw that a rear end collision with an approaching automobile was imminent. Under the circumstances the plaintiff was required to be alert for his own safety and to watch for the approach of automobiles. We quote from the opinion: "It is the function of a highway to furnish a safe and convenient place for travel. Conceding that the temporary use of a highway for making an emergency repair to a vehicle is a proper use, it is nevertheless a partial obstruction to traffic engaged in the normal use of the highway, and it is the duty of one so engaged to obstruct the traffic as little as conveniently possible and not to unnecessarily endanger others. And he must keep a reasonable lookout to avoid injury to himself or property. Nothing less can justify such use of a highway. By lighting the lights he had, respondent may have done all that he could under the circumstances to warn others of his presence, but that did not excuse him from keeping a lookout to avoid injury from moving traffic."

In Taecker v. Pickus et al., the plaintiff, driving an automobile, failed...