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STRANGE v. S.C. DEPT. OF HWYS. & PUB. TRANSP.2/10/1992
er his opinion on the grounds that the facts were disputed, the testimony was in variance, and it would be confusing to the jury to hear an opinion from another expert witness.
It is the duty of the jury to weigh conflicting evidence. Jones v. Grissett, 258 S.C. 22, 186 S.E.2d 829 (1972). Appellant was prohibited from contradicting respondents' expert witness's opinion on the ultimate issue through the use of its expert witness. Cf. Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990). Accordingly,
B. JURY INSTRUCTIONS
Appellant next asserts that the trial judge erred in refusing to charge assumption of the risk. We agree.
Assumption of the risk requires an intelligent and deliberate choice to assume a known risk. A plaintiff is said to have assumed the risk as a matter of law when it appears that the plaintiff freely and voluntarily exposed himself to a known danger and understood and appreciated the danger. Broom v. Southeastern Highway Contracting Co., Inc., 291 S.C. 93, 352 S.E.2d 302 (Ct. App. 1986). Assumption of the risk, like contributory negligence, generally is a question of fact to be determined by the jury. Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct. App. 1986).
Appellant presented testimony that its employees had placed low shoulder signs, delineators, and "25 mph" advisory signs along the roadside. Respondent Hudson had walked alongside the road during the daytime after it had been repaved in addition to having driven on the unpainted, ungraded, newly paved road prior to the accident.
A court must charge the jury on the law framed by the issues as made by the pleadings and the facts developed by the evidence in support of those issues. Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977). We conclude that there was sufficient evidence presented to entitle appellant to a jury charge regarding assumption of the risk. We therefore hold that the trial judge erred in refusing to instruct the jury regarding assumption of the risk.
C. IMMUNITY BASED ON DISCRETIONARY ACTS
Appellant next argues that it is immune from liability for respondents, losses because its acts were discretionary and therefore protected under the South Carolina Tort Claims Act. Because we remand for a new trial on other grounds, we decline to reach this issue. We direct appellant's attention, however, to our recent treatment of discretionary immunity
In sum, we hold that the trial judge erred in refusing, under the circumstances, to allow appellant's expert to testify as to the ultimate issue; in allowing respondents' expert to testify as an expert in accident reconstruction; and in failing to charge the jury regarding assumption of the risk. We dispose of appellant's remaining exceptions pursuant to Rule 220, SCACR.
The jury verdict is reversed and the case remanded for a new trial.
Reversed and remanded.
CHANDLER, FINNEY and TOAL, JJ., and JASPER M. CURETON, Acting Associate Justice, concur.
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