Laney v. Chesterfield County , 29 S.C. 140 ( 1888 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

The appellant sought, below, to recover damages for injury to her property, certain mules and a wagon, alleged to have been caused by the falling in of a bridge on a public highway. The driver of this team and wagon, who was injured at the same time, also brought action, and it was understood that this appeal should embrace the two. The verdict was for the defendant, and the appeal is based upon a single exception, to wit: “Because his honor charged the jury that the question of contributory negligence could be considered as affecting the ease.”

It will be seen by looking into the case, that the actions were brought under section 1087, General Statutes, which provides : “That any person who shall receive bodily injury or damage in his person or property through a defect in the repair of a highway, causeway, or bridge, may recover, in an action against the county, the amount of damages fixed by the finding of a jury. If such defect in any road, causeway, or bridge existed before such injury or damage occurred, such damage shall not be recovered by the person so injured, if his load exceeded the ordinary weight.”

The substance of his honor’s entire charge was condensed at the close in the following concise sentence, to wit: “To prevent the plaintiffs from recovering in these cases, the preponderance of evidence must be that there was an overload, or that the defect was such that this man was obliged to know that he would go down, or would by the exercise of ordinary intelligence have seen it,” which he illustrated in the following language: “Suppose the defect to consist in the washing away by a freshet of a span, or part of a span, and the driver comes up with a loaded wagon, and although part of the span is gone, he is headstrong enough to drive his mules to destruction, and himself to the risk of ruin, why, you would say at once that the man could not recover, because the defect is such that he could not drive over. That is what I mean by this thing of contributory negligence; that is an illustration of a man bringing injury on himself.”

It is true that section 1087, General Statutes, says nothing about contributory negligence, and it holds the county responsible for all injuries sustained through a defect, “in the repairs of the highway, &c., &c.,” without qualification or conditions ; but it does not seem to us that his honor’s charge was at all in conflict with this construction of the act, because in a case like that put by his honor, explanatory of the law laid down, the injury sustained could not be said to have been caused by a defect in the repairs of the highway or bridge. On the contrary, the cause would be the inexcusable heedlessness of the party injured. His honor held the county responsible in every case except where the injured party apparently availed himself of a patent defect to bring injury to the property exposed, or at least the jury was not warranted in coming to any other conclusion than that such was his honor’s idea of the law in such cases. As his honor said : “It was certainly not intended that this act should be an unreasonable one, and if the interpretation given to it by plaintiff is correct, it would be unreasonable.”

In the case of Thompson v. Railroad Company (24 S. C., 369), this court did say that in section 1511 of General Statutes, a somewhat similar act to section 1087, “Nothing was said about negligence, the purpose of the act being to dispense with any inquiry into that subject.” .Section 1511 was an act intended to make railroad companies liable for damage done by fire communicated by the engine, or originating within the limits of the right of way of the company, and the act was imperative and distinct that in such cases the company should be responsible, and the court, in discussing this act, used the above language, holding that, so far as the defendant was concerned, the question of negligence was not involved (see also Crouch v. Railway Company, 21 S. C., 495), that the company was liable, whether negligent or not, and also whether the fire was the remote or proximate cause of the injury, the liability attaching upon the fact that the fire was communicated by the engine, or that it originated within the right of way of said company. So, too, under section 1087, the county could not shield itself by interposing due care, proper attention, and the absence of negligence, because this section, like section 1511, dispenses with and eliminates all such inquiries, and bases the right of action granted therein upon injuries occasioned by the defect in the highway.

But this does not prevent the county from showing that the defect, although in existence, was yet not the cause of the injury, but that, on the contrary, the plaintiff himself made use of that defect by his own heedlessness and recklessness in producing the injury. His honor’s charge, especially in the clear and pointed illustration by which it was explained, did not raise so much the-question of contributory negligence, but rather the question, what caused the injury ? was it the defect or the plaintiff’s own act ? True, it should require a strong case to relieve the county, when the injury occurred at the locality of a defect, and in attempting to pass over it, and so the charge of his honor explained to the jury here, which then became a question of fact for them.

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