Burnett v. City of Greenville , 106 S.C. 255 ( 1917 )

January 16, 1917. The opinion of the Court was delivered by Action for damages to the person and to personal property; order sustaining demurrer to the complaint; appeal by the plaintiff. There are four exceptions. but only one issue: Does the complaint state a case? The complaint ought to be reported.

The statute allows an action to (1) "any person who shall receive * * * damages in his person or property (2) through a defect in any street * * * (3) or by reason of defect or mismanagement of anything under the control of the corporation." The numerals are supplied.

The plaintiff received the damage to his person and to his car; there is no denial of that; but it is denied that the hurt came through a defect in the street. If the plaintiff has an action, it arises out of those words of the act we have prefaced by the numeral (2), to wit: "through a defect in any street." These words were recently construed by us in an elaborate opinion, and we there held them to include the keeping of a street in such physical conditions that it will be reasonably safe for street purposes. Irvine v. Greenwood, 89 S.C. 511, 72 S.E. 228, 36 L.R.A. (N.S.) 363.

The advent of the automobile, like the coming of the locomotive engine, and like a startling application of the laws of nature to any new appliance, is about to change society. If that device is of inestimable use to men, it is also of great and increasing peril to the people.

We take notice of these facts: That Greenville is a city of some 25,000 or more inhabitants, and that Main street is a great thoroughfare thickly settled and much used by the people. The amazing allegation of the complaint is that the plaintiff was struck with great force by an automobile running on that street at a terrific rate of speed, probably 75 to 100 miles an hour, which was using said street as a place of practice for hill climbing * * * with the knowledge and consent of the city, its mayor, councilmen and policemen. That is admitted to be true.

It is suggested by the city that the dedication of the public ways to automobile racing lay wholly outside of the powers of the corporation, for which act the corporation is not liable. That is another way of saying the corporation is liable if the authorities act within the law, and is not liable if the authorities act without the law. The prime duty of any city is to keep its streets clear for the public travel. The incumbrance of the streets with automobiles running at a dangerous rate of speed, just for practice, is a violation of that prime duty. To answer that the mayor and council had no authority to authorize such use of the streets, is to admit the wrong.

It is true there are decisions from other jurisdictions which sustain this view of the respondent, but they do not commend themselves to our judgment, and they do not express the general rule of law. See cases cited in 28 Cyc. 1356, note 36.

We are of the opinion that the street thus dedicated by the authorities to a hazardous use was not then reasonably safe for prime purposes. We have held the city of Columbia liable in tort under that portion of the statute we have signalized by the numeral (3) for injuries inflicted by its flying fire car bent on a public mission.Creps v. Columbia, 104 S.C. 372, 89 S.E. 316. Much more ought Greenville to be liable when flying autos imperiled the reasonably safe use of the streets by the people, and when the autos were not in the performance of a public duty.

The further discussion and the differentiation of other cases from other jurisdictions would becloud the issue; and we rest content with the authority and relevancy of those we have cited.

The judgment below is, we venture to think, against the law; and it is set aside, and the cause is remanded for further procedure.

MESSRS. JUSTICES HYDRICK and WATTS did not participate in the consideration of this case.