(concurring in judgment). I concur in the judgment of affirmance. It is my opinion that the plaintiff was a business invitee. In my view, the paramount question presented to us is upon the issue of contributory negligence, and I am also of the opinion that it cannot be said as a matter of law that plaintiff was negligent. He was familiar with the existing driveway and the fact that it was safe in the area on and about the driveway before the excavation, and he had no knowledge that the excavation had been made when he returned at around sunset on the evening of the accident. The light was dim and the outline of the excavation was necessarily obscure. Plaintiff’s testimony was that it was almost dark at the time of the accident. Plaintiff’s testimony further was that he could not distinguish the hole from the surrounding area “because all that ground looked the same all of the way *218around.” The excavation was, according to some of the testimony, within a few inches of the edge of the existing driveway which he was traversing with confidence to get from the public road to the part of the job site where he was to do work the following day. True, a pathway is not an invitation to leave at any place until its end is reached. But with just a few inches between the safety of the existing driveway and the recently created danger, a slight misstep would have precipitated him into the excavation. Under such circumstances, it is for the jury to say, under a proper charge on contributory negligence, whether a misstep or a deviation of a few inches from the edge of the pathway he had previously traveled constituted a step which a reasonably prudent person would not have taken.
I find no error in the record prejudicial to the substantial rights of the defendant.