92 S.E. 191 | S.C. | 1917
April 16, 1917. The opinion of the Court was delivered by Action in tort; verdict for the plaintiff for $175; appeal by the defendant.
The right of action arises out of section 3053 of the Code of Laws, which makes a city liable for hurt to a person by reason of a defect in a street. The circumstances of the action are these: The plaintiff is a youth of 17 years; he was walking along Jones avenue in the city of Rock Hill in the early morning hours, about half past 5 o'clock, in October, 1914; there was no light of day, and the electric light was 150 or 200 feet from the place of accident; a gate, with two strands of barbed wire on it, had fallen across the pavement, though it had confessedly been down only one hour; the boy did not see it, he fell over and into it, and hurt and cut his knee and ankle.
There are four exceptions; let them be reported. The appellant's argument has not followed the exceptions; so we shall essay to follow the points made in the arguments rather than follow the exceptions.
1. The appellant admits in the printed argument that so much of the street as is used by horses and wheels was once dedicated to the public, and "is an accepted street in the city of Rock Hill." But the appellant insists that the sidewalk of the street "has never been or is now accepted by the city, but is a private path or sidewalk over which the city has no control." The acceptance of the sidewalk, however, may be by public user, as well as by corporate action. Elliott states it to be now "the prevailing opinion that an acceptance may be implied from a general and long-continued use by the public as of right." Roads and Streets. p. 117. The testimony tended to show much user. *130
2. If the appellant means to suggest that the remedy of the statute (section 3053) extends only to hurts received from defects in the driveway of a street, and not to hurts received from defects in the sidewalk of a street, that is too narrow a construction of the statute. The words of the statute are "any street, causeway, bridge or public way." A street is but an urban way; and the limits of such a way as this, from side to side, are those fixed by public user. The public may reserve and use part of the way for foot passengers and a part of the way for horses and wheels. The pavement or sidewalk is a way, and the testimony tends to show it is a public way.
It would be a strange misapplication of the law to permit a municipal corporation to escape liability because it refused to recognize its duty. When the lot holder where the gate was set his fence back six feet, as he did, and thereby dedicated that space for a sidewalk for the public, and when the public so used it as it did, then the law cast upon the corporation the duty to keep it in reasonably safe condition for use.
3. If a gate with three strands of barb wire stretched on it lies prostrate on a pavement, the Court was right to submit to the jury if that was a defect in the street.Irvine v. Greenwood,
4. There is no force in the insistence that the Court charged on the facts. So much of the charge so alleged to offend was as follows:
Because of error in charging "that it is the duty of a city to exercise ordinary or due care to discover any obstruction in the street, or likely to fall across the street, and if a failure to perform this duty is negligence, and such negligence, if any, is a proximate cause of an injury *131 to one using the street, then the city is liable for all actual damages resulting therefrom."
The exception is so manifestly untenable as to need no discussion.
5. The printed argument of appellant has something to say about the plaintiff's own negligence in falling over the gate. But there is no exception thereabout. More than that, the Court submitted to the jury the issue of contributory negligence, and expressly charged the jury that the plaintiff could not recover "if his injuries were due to his own negligent act, or his negligence contributed to his injuries."
6. And the same is particularly true with reference to what the appellant has argued about the plaintiff's pursuit of an unsafe way when a safe way was before him. On that question the Court told the jury:
"Now, I charge you that if a man, in walking along the street, could see two ways on which he could travel, and it is obvious that one of them is dangerous, it would seem (and I charge you that is the law), if he didn't pursue the safe course, he would be guilty of negligence, if he pursued the course that was obviously unsafe."
7. The last issue is that of negligence. The respondent's attorney stated in his oral argument that the defendant's omission did not consist in failing to discover the prostrate gate, for it was down hardly one hour, but consisted in failing to discover that the post to which the gate was hinged was decayed, was leaning towards the pavement, and had been so leaning for some six months, and was likely to fall on the pavement. The defendant's argument is twofold: First, that the fence was standing off the street on a private lot, though along the line of the street, and was, therefore, not under city's control; and, second, that the testimony was not sufficient to show a lack of ordinary care in the premises.
The city was bound to keep the way reasonably safe. If the fence was immediately on the inner line of the pavement, *132 and likely to fall on the way, then it was a public nuisance (Cooley on Torts, p. 607); and the city had the right to abate it by entry on the lot for that purpose (Cyc., p. 1218).
On the second proposition, the Court concludes that the testimony sufficiently tended to show negligence in the city's failure to exercise ordinary care to observe the fence was tottering to a fall.
The judgment below is affirmed.
