Holman v. City of Orangeburg

101 S.E. 834, 113 S.C. 489, 1920 S.C. LEXIS 15

Opinion

The opinion of the Court was delivered by

Mr. Justice Gage.

Action for tort to the person; nonsuit; appeal by the plaintiff.

The particular delict alleged, and that to which the testimony was directed, was the maintenance by the city of. an abandoned water “cut-off” on and nearly midway a pave.ment of one of its principal streets.

The testimony tends to show that the cut-off is two or three inches in diameter; it protrudes two or three inches above the face of the pavement; it has so existed more than 10 years; the obstruction had been reported to the city 'government, and its removal asked for; three other men besides the plaintiff had fallen over it, and one had done so many times; and an old lady fell over it and nearly fell into a near-by ditch.

1, 2 It was for the jury to determine: (1) If-this testimony is true; and (2) if it convicted the defendant of a lack of due care.

The late case of Aughtry v. Columbia, 98 S. E. 195, upon which the Court relied, presented no such facts; and facts make a case.

The nonsuit ought not to have been granted.

The judgment is reversed, and a new trial is ordered.