Chewning v. Clarendon County

This is an action under Section 2948 of the Code of 1922 (as amended by Act April 14, 1925 [34 St. at Large, p. 287]), and Section 2950, for damages on account of the alleged wrongful death of the plaintiff's intestate, John H. Chewning, her husband, resulting from the breaking in of a bridge of the county over which intestate was driving a tractor owned by the county and operated by the intestate as an employee of the county and under the direction of a superior officer.

The complaint alleges that the collapse of the bridge was due to the defective condition of the timbers and the negligence of the county in not maintaining it in a proper state of repair in view of the known use of the bridge by the county. It is also alleged that the injury received by the intestate was not caused by his contributory negligence and that the load did not exceed the ordinary weight although it is alleged that the tractor weighed "about six tons," 12,000 pounds.

In the defendant's answer it was admitted that the tractor weighed about six tons as alleged in the complaint; that such weight "was great and unusual and far in excess of the ordinary weight"; that the deceased was experienced with tractors and had been warned by the appellant of the danger of crossing bridges, instructed never to go upon one except after careful inspection as lighter machinery could be used, and then to drive over the center of the bridge in order to distribute the great weight.

The answer further denied all allegations of the complaint as to defects and care, and alleged as defenses various acts of contributory negligence and that the deceased had assumed all ordinary risks of his employment of driving a heavy tractor on county roads.

The evidence showed that the county had purchased a tractor for use in drawing a plow used in repairing a certain highway; that in the course of the operation the deceased, employed to drive the tractor, was directed to cross the bridge in question, and that while doing so the bridge collapsed causing his fall and death; that some of the timbers of the bridge were defective and that sufficient repairs had not been made upon the bridge to ensure the safe passage of the tractor over it; that the tractor weighed at least 5 tons, 10,000 pounds; that it was the largest that had ever been seen in that vicinity and the weight of an ordinary load upon wagon or other vehicle was 1,000 pounds.

At the close of the testimony for the plaintiff the defendant moved for a nonsuit, and at the close of all of the testimony for a directed verdict, both of which were refused. We do not deem it necessary to consider any of these grounds except the ground that the plaintiff had not shown that the load upon the vehicle operated by the deceased did not exceed the ordinary weight.

The verdict of the jury was in favor of the plaintiff, for $4,250.00, and from the judgment entered thereon the defendant has appealed.

It is to be remembered that the liability of a county for the negligence of its officers and agents in connection with the construction, maintenance, and repair of its highways and bridges, is exceptional, and specifically limited by statute to injuries within a prescribed sphere. There was no liability at common law on account of injuries so received; the statute alone creates it; and to the statute, as construed by the decisions of this Court, resort must be had to determine whether an injury sustained under certain circumstances, comes within the purview of the statute.

The statute, Section 2948, as amended, is a process in the evolution of the law. The act of which it is a reproduction was intended to provide a remedy (under certain prescribed conditions) which did not theretofore exist; to remove the immunity which a county enjoyed under the common law, from liability in damages, on account of an injury sustained by a person "through a defect in the repair of a highway," due to the negligence of the official representatives of the county.

A municipal corporation, a county for instance, being a governmental agency, charged with the duty of keeping its avenues of travel in proper repair, is not liable, in a civil action, for damages on account of injuries sustained in consequence of a breach of this duty on the part of the agents of the corporation in the absence of a statute imposing such liability, and only then upon a substantial compliance with the requirements and conditions upon which such liability is predicated. Bryant v. City Council, 70 S.C. 137,49 S.E., 229; Gibbes v. Beaufort, 20 S.C. 218; White v. CityCouncil, 2 Hill, 572; Coleman v. Chester, 14 S.C. 290;Black v. Columbia, 19 S.C. 412, 45 Am. Rep., 785; Youngv. City Council, 20 S.C. 116, 47 Am. Rep., 827; Dunn v.Barnwell, 43 S.C. 398, 21 S.E., 315, 49 Am. St. Rep., 843;Bramlett v. Laurens, 58 S.C. 60, 36 S.E., 444.

In Randal v. Highway Department, 150 S.C. 302,148 S.E., 57, 58, it was held in the Circuit decree of his Honor, Judge Johnson, which was adopted as the opinion of the Court: "In this State neither the commonwealth, nor any of its political subdivisions, is liable in action ex delicto unless made liable by express enactments of the General Assembly, except where the acts complained of, in effect, constituted a taking of private property for public use without just compensation. Young v. City Council of Charleston,20 S.C. 116, 47 Am. Rep., 827; Mullinax v. Hambright,115 S.C. 22, 104 S.E., 309; Faust v. Richland County, 117 S.C. 251,109 S.E., 151; Derrick v. Columbia, 122 S.C. 29,114 S.E., 857; Kneece v. Columbia, 128 S.C. 375,123 S.E., 100."

As the Court says in Chick v. Newberry Co., 27 S.C. 419,3 S.E., 787, 788: "Prior to its adoption, the disability * * * was general, and still remains as to all except such as are taken out by the act."

In that case it was held that a county was not liable for injuries caused by a defective flat boat on a ferry operated by the county commissioners, the Court declaring: "The act in question undertakes to enumerate the cases in which the right to sue the county is given, viz., for ``defects in the repair of a highway, causeway, or a bridge.' This enumeration, as it seems to us, excludes matters not enumerated" — which illustrates with what strictness the statutory liability is limited. There it was conceded that the ferry connected the two termini of the highways at the river; that it was owned and controlled and operated by the county commissioners; that the flat boat was defective; and that injury resulted.

By the express provisions of the statute creating this exceptional liability, certain conditions to a recovery of damages are imposed:

1. It must be affirmatively shown that there was a defect in the highway or bridge;

2. It must affirmatively appear that the presence of the defect was "occasioned by its (the county's) neglect or mismanagement";

3. It must be alleged and affirmatively shown, contrary to the usual rule, that the injured person "has not in any way, brought about such injury or damage by his own act, or negligently contributed thereto";

4. It must be alleged and affirmatively shown that the load upon the vehicle operated by the injured person did not exceed "the ordinary weight."

Upon a review of the conflicting evidence in the case, it may be rightly concluded that there was some evidence tending to show that there were defective timbers in the bridge, which would be sufficient to carry that issue to the jury.

We think, too, that considering the work in which the county authorities were engaged, the repair of the highway, in which the officials made use of heavy tractors, which naturally were expected to cross the bridges of the highway, it was their duty to provide and maintain bridges for such anticipated use, of sufficient strength and condition. There was sufficient evidence of a failure to perform this duty, to carry the issue to the jury, if the defendant had been an ordinary tort-feasor. It was, as has been seen, a tort-feasor charged with liability, only under certain specified conditions, which of course had to be established. One of these conditions was that the injured person was, at the time, operating a vehicle carrying a load which did not exceed the ordinary weight.

The original Act was passed long before the coming of automobiles and tractors; manifestly it contemplated horse-drawn vehicles, carrying such loads as were common to that class of vehicles; the only other vehicles extant in those days were portable engines and threshing machines, if they could be considered vehicles; we have no doubt but that if one of these machines, weighing much more than the ordinary weight of loads, had crashed through a bridge, the loss would not have come within the terms of the statute, for it could not be said that the engine or thresher was of ordinary weight.

In 13 R.C.L., 375, it is said: "So a municipality is only called upon to make provision for carriages of ordinary width which people are accustomed to use, and while a person is at liberty to use the way with whatever vehicle he may see fit to drive upon it, which is fit for that purpose, if he uses one of unusual construction or of unusual weight, he cannot hold the municipality liable for accidents happening because of its unusual character, provided the highway is constructed for ordinary vehicles and would have been reasonably safe for them."

The original Act, with certain amendments, not germane to the present issue, has been reproduced in the Act of 1925, 34 St. at Large, p. 287, which contains the same condition, that the injured person cannot recover damages if his load exceeded the ordinary weight.

The plaintiff evidently appreciated the necessity of alleging compliance with the conditions imposed by the statute; it is alleged in the complaint, that the tractor weighed 6 tons, 12,000 pounds, and that the load, evidently the weight of the tractor, "did not exceed the ordinary weight." It seems to me that the allegations of the complaint conclusively show that the use of the tractor was for the temporary purpose of repairing the highway; an unusual and extraordinary use, certainly therefore not ordinary, in relation to travel, and that the weight was equally extraordinary. It appears impossible to hold that the passage of a vehicle weighing 6 tons could be considered an ordinary occurrence upon a country road. It is noticeable that there was not the slightest effort on the part of the plaintiff to establish the fact that the load was of ordinary weight.

Aside from the impression of an ordinarily intelligent man that the tractor did not constitute a load of ordinary weight, a witness for the plaintiff testified that the ordinary weight of a load in that community, over that bridge, was 10 sacks of guano, 2,000 pounds, one ton; that the presence of a tractor at that locality was an unusual thing; and that this particular machine was the largest and heaviest that he had ever seen. In view of the allegation in the complaint that the tractor weighed six tons, of the testimony of plaintiff's witness that the weight of the ordinary load was one ton, and of the utter absence of testimony on the part of the plaintiff that the load was of ordinary weight, I do not think that any other reasonable inference could be drawn than that the load was in excess of the ordinary weight.

Webster's International dictionary defines the adjective "ordinary" as "common; customary; usual."

In 46 C.J., 1132 "ordinary" in its adjectival use is defined with footnote citations of authority for each definition, as "* * * according to established order; accustomed; common; common in recurrence; conforming to general order; customary; established; methodical; normal; often recurring; regular; settled; usual; that which has been established and is customary."

Words and Phrases, First Series, Vol. 6, p. 5027:

"The word ``ordinary,' a synonym of ``regular,' is defined by Webster as methodical, regular, according to established order. Zulich v. Bowman, 42 Pa. (6 Wright), 83, 87. * * *

"The word ``ordinary' is defined as common, usual, often recurring. Chicago A.R. Co. v. House, 172 Ill., 601,50 N.E., 151, 153.

"Johnson assigns to the word ``ordinary' the meaning of established, regular, common, usual. Crenshaw v. Slate RiverCo., 6 Rand. [27 Va.], 245, 263."

Midland Timber Co. v. Pegues, 93 S.C. 82,76 S.E., 32, 34: The meaning of the word "ordinary" is defined as follows: "``Ordinary,' in the usual acceptation of the word, means ``common,' ``usual,' ``common occurrence,' ``usual practice.'"

In 4 R.C.L., 223, it is said: "A municipality is not bound to so maintain bridges as to make them absolutely safe; its obligation being merely to exercise ordinary care in keeping the bridges under its control in a safe condition for all usual and ordinary modes of travel and transportation of property over them."

Ibid. 239: "If, however, one transports across a bridge a load which exceeds the weight permitted by statute the insufficiency of the bridge does not give rise to any action."

9 C.J., 480: "As it is unnecessary that bridges shall be constructed to sustain unusual extraordinary, or unexpected loads, it follows that one who attempts to cross such a bridge with a load which is clearly of such nature, and which would subject the bridge to an unusual strain, is guilty of contributory negligence. So, too, if a statute prescribes a maximum weight to which a bridge shall be subjected, an injured party ordinarily cannot recover if his load exceeds such maximum."

42 L.R.A. (N.S.), 1036: "A statute having prescribed the weight which might lawfully be transported across a toll bridge, if it appears that the plaintiff's load exceeded such weight, and thereby the bridge was broken down, with injuries to the plaintiff, he is prohibited from recovering for such injuries. Dexter v. Canton Toll-Bridge Co.,79 Me., 563, 12 A., 547."

Com. v. Allen, 148 Pa., 358, 23 A., 1115, 1117, 16 L.R.A., 148, 33 Am. St. Rep., 830: "As a general rule, highways and bridges are constructed for ordinary use, in an ordinary manner, and not for an unusual or extraordinary use, either by crossing at great speed or by the passing of a very large and unusual weight. A township is not bound to do more than to so construct its bridges as to protect the public against injury by a reasonable, proper, and probable use thereof, in view of the surrounding circumstances, such as the extent, kind, and nature of the travel and business over them."

The following quotations are from English cases construing the terms "excessive weight" and "extraordinary traffic" in their general highway law and are found in 5 A.L.R. at page 770 et seq.

"The traffic is not the less extraordinary because it comes from timber grown on the adjoining lands, when the quantity hauled is unusual."

"Using traction engines to carry manure over a road used principally for ordinary farm traffic is ``extraordinary traffic.'"

"So it is ``extraordinary traffic' to employ a new plan of carting coal, taking a string of four or five carts at a time in the same track * * * or to employ a new manner of carting stone on the road in question, viz., by traction engines not usual there."

"Stone traffic, caused by the opening of a stone quarry, which had not been before carried over the particular road, is ``extraordinary traffic,' though there had been stone traffic over other roads in the vicinity."

"That the needs of the district demand motor buses will not prevent their traffic from being ``extraordinary traffic.'"

"A person by bringing in heavier and new kinds of vehicles cannot make the use of them ordinary traffic after a time, so that he can compel the authorities to provide for them as ordinary. * * * Nor can he make the hauling of bricks in heavy loads over an agricultural road not extraordinary. * * * And a quarryman was held liable for expenses where for seven years he had carted stone over a highway not before ordinarily used for that purpose."

"The standard is the ordinary traffic of the particular road, not the ordinary traffic of other roads in the district."

The appellant complains of a modification of the third request to charge. The request was as follows: "The burden is upon the plaintiff to prove that the load of the deceased, including the weight of the tractor, did not exceed the ordinary weight — the weight of usual loads and vehicles passing over the roads — and unless she has proven this by the preponderance or greater weight of the evidence, she is not entitled to a verdict from you, and you must find for the defendant."

The modification was: "I charge you that by adding: ``or the weight of such load as the county could reasonably anticipate would use the road.'"

We think that the request was entirely in accord with the terms of the statute; the modification inserted an element that does not appear therein, namely, that the test was a reasonable anticipation by the county of a use to which the bridge might be put. The question of reasonable anticipation might have entered if the defendant had been an ordinary tort-feasor, but not when it was defending a specific statutory liability, the test of which was correctly stated in the request. The error is emphasized by the charge complained of in the seventh exception: "It is the duty of the county to keep the bridges reasonably safe for the purposes for which the bridge is used."

The jury could not escape the conclusion that the county could reasonably anticipate the weight of its own machine, and, indeed, that it knew of it. There was error in thus holding the county to responsibility for more than the "ordinary weight" as prescribed by the statute.

In this connection the county officers cannot enlarge the county's liability under the statute by the purchase of a road machine of extraordinary weight. Such will not render its excessive weight, as compared with all else upon the county roads, as in this instance, "ordinary" within the terms of the statute. And the liability will not be increased by estoppel or otherwise by knowledge or acts of the officials. Chick v.Newberry, 27 S.C. 419, 3 S.E., 787; Hill v. LaurensCounty, 34 S.C. 141, 13 S.E., 318.

The judgment of this Court should be that the judgment of the Circuit Court be reversed and that the case be remanded to that Court for entry of judgment in favor of the defendant under Rule 27.