Young v. Price

• Decision Date: 09 December 1963
• Docket Number: No. 4250,4250
• Citation: 388 P.2d 203,47 Haw. 309
• Parties: Mary Ruth YOUNG v. Louis P. PRICE and Allen L. Souza, Individually and doing business as Price Concrete Tank Company, an Hawaiian Co-Partnership.
• Court: Hawaii Supreme Court

Page 203

388 P.2d 203

47 Haw. 309

Mary Ruth YOUNG v. Louis P. PRICE and Allen L. Souza, Individually and doing

business as Price Concrete Tank Company, an

Hawaiian Co-Partnership.

No. 4250.

Supreme Court of Hawai'i.

Dec. 9, 1963.

Syllabus by the Court

1. To warrant submission of the issue of liability to the jury, there must be substantial evidence of negligence amounting to more than a mere scintilla.

2. On a motion for a directed verdict, the evidence and the inferences which may be fairly drawn therefrom must be considered in the light most favorable to the party against whom the motion is directed and if the evidence and the inferences so viewed are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue, then the motion should be denied and the issue submitted to the jury.

3. It is a rule well established that one who, while lawfully using a public sidewalk for a particular purpose, places an obstruction so as to create a dangerous condition thereon, owes a duty to exercise reasonable care to warn or protect pedestrians from injury.

4. One who, while walking alone a public sidewalk, fails to see and avoid an obvious obstruction just ahead in plain sight is guilty of contributory negligence as a matter of law.

Daral G. Conklin (Smith, Wild, Beebe & Cades, Honolulu, on the briefs), for defendants-appellants.

Ralph E. Corey (Clark & Corey, Honolulu, on the brief), for plaintiff-appellee.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

WIRTZ, Justice.

This is an appeal from the judgment entered on the verdict awarding plaintiff damages for injuries sustained by her in a fall under the following circumstances.

At about 1:00 or 1:30 P.M. on the cloudy and windy afternoon of March 4, 1958, plaintiff, a 56-year old woman in 'pretty good' health, noticed that it had started to rain as she was about to leave her apartment in Waikiki at the corner of Kuhio Avenue and Lewers Road. She reentered the apartment for her umbrella. She then walked down the sidewalk on the southerly (makai) side of Kuhio Avenue, in a Diamond Head, or easterly, direction toward Royal Hawaiian Avenue. She was carrying a Quantas airplane bag over her right shoulder containing $15 in silver and pennies, $15 in currency, some cookies, a thermos bottle of milk, a small jar of vegetables and a sandwich. Cradled in her left arm was her business ledger book. ¹ In her right hand she titled her umbrella so as to keep the rain from her trifocal glasses, which were wet.

When plaintiff was about half-way down the block, walking along the normal cement colored sidewalk, wearing flat-heeled, rubber-soled shoes, her right toe 'hit something' which she had not seen whereupon she fell down on the sidewalk. Plaintiff thereafter looked down and saw that she was lying on a green hose of the defendants, or sitting on it, which was slanted across the sidewalk. ²

Under this factual situation the immediate question posed concerns itself with liability as presented under the first specification of error that: 'The trial court committed reversible error by failing to grant defendants' motion for a directed verdict, made at the close of plaintiff's case and repeated at the close of the evidence.'

Bearing in mind that plaintiff having prevailed before the jury, her evidence must be considered in a light most favorable to her. Further, we are not unmindful that we must place ourselves in the same position as the trial judge who in ruling on a motion for a directed verdict 'must look upon the evidence in the light most favorable to the movee with every reasonable inference which may be drawn from the evidence resolved in his favor.' Waterhouse Trust Co. v. Rawlins, 33 Haw. 876, 884. See also, 5 Moore, Federal Practice, § 50.02 (2d ed. 1951); 2B Barron & Holtzoff, Federal Practice & Procedure, § 1075 (1961). At the close of plaintiff's case, this evidence consisted of her testimony and defendants' pre-trial admission that their hose was across the sidewalk.

Her testimony was that she was walking along a normal cement colored public sidewalk during daylight business hours of a rainy day. She was carrying her opened umbrella, which she held at an angle so that she could look straight ahead, and she was looking straight ahead so that she would not bump into people. She did not have her 'nose to the ground.' ³ She had walked about half-way down the block when her right toe hit something and she fell down and was injured. After the fall and while lying on the ground, she saw that she was lying or sitting on defendants' green water hose. She had not previously seen the hose, and saw no warning sign or sign of any kind at or near the place where she fell and did not see 'anything, or any person' on her side of the street. ⁴

In summation, then, plaintiff's evidence on liability was that she fell down and found the defendants' hose beneath her; that she had been looking straight ahead as she walked down the block; that she had not seen the green hose or any warning; and that she had not seen anything or any person on her side of the street.

The only undisputed evidence relating to liability ⁵ supplied by the defendants was in the testimony of Moody M. Keliihoomalu, an Hawaiian Electric Co., Ltd. foreman, who was following behind the plaintiff as she walked down the sidewalk. This witness testified that the hose was lying flat on the sidewalk and that at each edge of the sidewalk where the hose crossed there was an orange traffic cone with a black base and a red tip. ⁶ He further testified that one of the cones had a red flag ⁷ sticking out of the top of it.

At the close of all the evidence, factually before the trial court was the following evidence pertaining to the negligence of the defendants: plaintiff fell on defendants' one-inch green hose, which was lying flat on the sidewalk, the sidewalk at that point being bracketed at each edge by a traffic cone, in one of which a red flag protruded.

To warrant submission of the issue of liability to the jury, there must be some substantial evidence, amounting to more than a mere scintilla, showing negligence. Holstein v. Benedict, 22 Haw. 441; Bank of Bishop & Co. v. The Hawaii Soap Co., 28 Haw. 180; Waterhouse Trust Co. v. Rawlins, supra, 33 Haw. 876.

Further, 'where the facts are disputed and reasonable men might differ on the facts or the inferences which may be reasonably drawn from the facts, the question of negligence is left to the jury under proper instructions; but where there is no conflict from the evidence and but one inference can be drawn from the facts, it is the duty of the court to pass upon the question of negligence and proximate cause as questions of law.' Carreira v. Territory, 40 Haw. 513, 517. This is equally true where contributory negligence is the issue. Ferrage v. Honolulu Rapid Transit, 24 Haw. 87, 91.

The adoption of H.R.C.P., Rule 50, governing motions for a directed verdict has not affected these rulings, as the cases construing the corresponding Federal Rules of Civil Procedure are neither in conflict, nor inconsistent, with the above decisions. Generally, the federal courts have stated the rule to be that on motions for a directed verdict, the evidence and the inferences which may be fairly drawn from the evidence must be considered in the light most favorable to the party against whom the motion is directed and if the evidence and the inferences viewed in that manner are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue, then the motion should be denied and the issue should be submitted to the jury. See, 5 Moore, Federal Practice, § 50.02 (2d ed. 1951); 2B Barron & Holtzoff, Federal Practice & Procedure, § 1075 (1961).

'Actionable negligence' has been defined ⁸ in Ward v. Inter-Island Steam Nav. Co., 22 Haw. 66, 69, as 'the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such person would not have done.' As pointed out in Carreira v. Territory, supra, 40 Haw. 513, 518-519, in order to establish liability for negligence '* * * it is incumbent upon the plaintiff to show three things: First, a breach of duty which defendant owed to him; second, a negligent breach of that duty; and, third, injuries received thereby resulting proximately from that breach of duty.'

It becomes necessary to determine the duty which is owed to a pedestrian by one who creates an artificial condition upon a sidewalk. As a general rule, it is the duty of one who, in the lawful use of a sidewalk, creates a dangerous condition thereon or therein, to use reasonable care to warn pedestrians of its existence or to protect them against injury. McManus v. New Jersey Water Co., 22 N.J.Super. 253, 91 A.2d 868; Hansen v. Clyde, 89 Utah 31, 56 P.2d 1366; and see cases in Annots., 104 A.L.R. 943 and 7 A.L.R. 1203. As least one case, brought to our attention, seems to hold that the placing of any obstruction on a sidewalk is negligence per se. Atlanta Muffler Shop, Inc. v. McSwain, 98 Ga. 722, 106 S.E.2d 823. We believe the holding to be too rigid. However, there is no question that the presence of a hose on a sidewalk creates some risk or hazard to a pedestrian.

The distinguishing factor in these sidewalk, or highway, obstruction cases as to the extent of the duty owed a pedestrian is the type or nature of the 'dangerous condition' created. In the instant case it may well be arguable whether a hose lying across a sidewalk during the deytime could be considered a 'dangerous condition,' and because of a possible doubt in that respect, it conceivably could become a jury question. Cf., 29 Tenn.L.Rev. 592 (1962). The catalytic ingredient to render this condition 'dangerous' could be the existence in the particular locality of...