Kilpatrick v. City of Spartanburg , 101 S.C. 334 ( 1915 )

July 12, 1915. The opinion of the Court was delivered by The facts are thus substantially stated by appellant's attorneys:

"Plaintiff rented from defendants a house on North Liberty street, in the city of Spartanburg, and, together with two other families, was living in it. Under defendant's deed properly recorded a short time prior to beginning of plaintiff's tenancy, they owned lot upon which house is located, extending eastward to a line 15 feet west of the outer edge of the Liberty street sidewalk, as it existed at the time plaintiff's tenancy began; the 15 feet being reserved in deed for purpose of widening the street. The street had been raised, and, for convenient access to the street, a board walkway three or four feet wide extended from the front steps of the house some two or three steps above the ground to the sidewalk. During plaintiff's tenancy, the city developed the street by raising it and by filling in this 15-foot strip, which had been acquired by the city, and extending the width of the street to cover same. The filling in was done by one Lowe, who, being employed by Geilfuss for that purpose, hauled dirt from the excavation of Geilfuss, and with the permission of the city dumped said dirt upon this strip. To facilitate this work, Dunbar, at Lowe's request, told Lowe to saw the walkway in two and move it, which he did, pulling the end towards the street on the ground near the house, and swinging the end towards the house around toward the house, leaving one corner fastened on the step, the adjacent corner suspended, and the other end on the ground. A few days thereafter, this piece was moved by plaintiff's wife and Mary McKenzie, a 14-year-old girl, a member of a family having apartments in the house occupied by Kilpatrick, and was by them placed flat on the ground in the side yard at the end of the front porch. A day or two later the McKenzie girl, playing and wanting to make a fence between the front yard and the back yard, set this piece of walkway up on edge, extending it from the house towards the outer side of the lot, and tacked a stick on each side to hold it up. This was done about 10 or 11 o'clock a. m. About 4:30 o'clock p. m. of the same day, the McKenzie girl and her smaller sister and Kilpatrick's 4-year-old girl, with her mother's knowledge and consent, were playing in the yard, and, while the McKenzie girl was under the house reading a book, this walkway fell on plaintiff's child, breaking her leg."

His Honor, the presiding Judge, granted the motion for a nonsuit as to all the defendants except the Dunbars, against whom the jury rendered a verdict for $288. The Circuit Judge ruled that the plaintiff was not entitled to punitive damages.

The witness, Lowe, testified that:

"When he started the work he went and asked Dunbar about his board walk, and that Dunbar told him not to cover it up, but to saw it in two, and lay it out of the way; that he borrowed a saw from Dunbar, and he and his son sawed the walkway in two, and took both pieces out of their position and laid them flat down on the ground."

This was a mere suggestion of Dunbar as to the manner in which Lowe should prosecute his work, but was not intended to make him the agent of Dunbar. Dunbar did not even instruct him to place his walkway on the premises occupied by the plaintiff and others. The nonsuit should therefore have been granted as to all the defendants.

Another reason why the nonsuit should have been granted in favor of the Dunbars is that there were two intervening circumstances that prevented the action of the Dunbars from being the proximate cause of the injury, to wit: The removal of the walkway by the plaintiff's wife, and afterwards by Mary McKenzie.Cooper v. Richland, 76 S.C. 202, 56 S.E. 958, 10 L.R.A. (N.S.) 799, 121 Am. St. Rep. 946; Snipes v. Railway,76 S.C. 207, 56 S.E. 959.

It furthermore appears from the testimony that those in charge of the injured infant and of the premises were guilty of contributory negligence. Cantrell v.Fowler, 32 S.C. 589, 10 S.E. 934; Berger v. ElectricCo., 93 S.C. 372, 76 S.E. 1096.

The judgment of the Circuit Court in refusing the nonsuit as to the Dunbars is reversed, and the complaint dismissed.