Drews v. E. P. Burton & Co. , 76 S.C. 362 ( 1907 )

March 25, 1907. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, in consequence of injuries to his schooner, caused by a hidden log in a navigable stream.

The complaint alleges that the log was the property of the defendants, and that they negligently put and suffered it to remain in the navigable stream, as a dangerous obstruction to navigation; and, that the injury to the schooner was caused by the negligence of the defendants.

The defendants denied these allegations.

At the close of the plaintiff's testimony, the defendants made a motion for a nonsuit on the ground that there was no testimony tending to prove the allegations of negligence. The motion was, however, refused, but was renewed at the close of all the testimony, and again refused. The jury rendered a verdict in favor of the plaintiff for $350.00, and the defendant appealed upon exceptions which will be reported.

The first three exceptions relate to the admissibility of certain testimony, and will be considered together. They are predicated upon the theory that the plaintiff, in making the expenditures for repairs, was the agent of the defendants. There is no testimony, however, sustaining this contention. Furthermore, the plaintiff was only permitted to testify, as to sums of money which, from his personal knowledge, he knew had been expended, and this was fully as competent, as if the vouchers had been produced. These exceptions are overruled.

All the other assignments of error, are dependent upon the question, whether it was incumbent on the plaintiff to prove negligence; and this involves the construction of the complaint.

Section 28, art. I, and section 1, art. XIV, of the Constitution provide, that all navigable waters shall forever remain public highways; and section 1335 of the Code of Laws concludes as follows: "If any person shall obstruct the same, otherwise than as hereinafter provided, such person shall be deemed guilty of a nuisance." (It is not contended that the obstruction herein, was made in the manner permitted by the statute.)

The allegations of the complaint are appropriate to two causes of action — one based on negligence, and the other arising from the creation of a nuisance. When a person sustains a special injury, such as is alleged in the complaint, arising from the obstruction of a navigable stream, he is entitled to recover damages, on the ground that such obstruction constitutes a nuisance under the statute, as well as at common law. Carey v. Brooks, 1 Hill, 365. SteamboatCo. v. R.R., 30 S.C. 539, 9 S.E., 650. SteamboatCo. v. R.R., 46 S.C. 327, 24 S.E., 337; 21 Enc. of Law, 712, 713.

A nuisance is, in itself, a wrongful act; therefore, it is not necessary to prove negligence, which is another wrong, in order to recover damages caused by the nuisance, as negligence is no part of that cause of action.

His Honor charged the jury as follows: "If that log was the property of the defendant, and was negligently permitted by the defendant to become an obstruction in a navigable stream, and this obstruction was the proximate cause of the plaintiff's injury, if he received any, then the plaintiff is entitled to his actual damages. I charge you on the other hand, that if the evidence establishes the fact to your satisfaction, that this was the defendant's log, but that it escaped by an accident from his boom through no negligence of the defendant, its servants or agents having the boom in charge, and that the defendant, and its servants who were representing the master in charge of this boom, had no notice of it, of the fact that the log had escaped, and had not been guilty of any negligence in permitting it to escape, then the defendant would not be liable even if it was defendant's log. But if you should find that it was the defendant's log, and that it had been permitted to escape, or had escaped, from the defendant's boom, then I charge you the burden of satisfying you it was permitted to escape, without any fault on the part of the defendant, is upon the defendant.

"I don't know that I need charge you any further in a general way. The plaintiff must prove that the defendant, its servant or agent, placed this log in that stream, before he can recover, because that is what he has alleged, and negligently permitted it to become an obstruction to navigation. The burden of establishing that to your satisfaction, by the greater weight of the evidence, is upon the plaintiff and unless plaintiff has done that you will find for the defendant."

It will thus be seen that the charge, in so far as it related to the cause of action based upon the nuisance was too favorable to the appellants; and even upon the question of negligence, they have no just cause of complaint.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.

MR. JUSTICE WOODS concurs in the result.