42 S.C. 17 | S.C. | 1894
The opinion of the court was delivered by
This was an action brought by the plaintiff against the County of Hampton for damages, on account of injury to a mare, the property of the plaintiff, alleged to have been sustained by the breaking of a decayed plank in a bridge, while the plaintiff was “riding the mare along a causeway, known as Hickory Hill causeway, a part of a public highway of Hampton County;” from the effect of which injury, it is alleged, the mare subsequently died. The plaintiff himself testified that when the injury was inflicted “he was in a road-cart, driving a very fine mare,” &c., October 13, 1891. There was proof tending to show that about two weeks before the time of the alleged injury to the mare the swamp had been very full; there was no passing at all at that place. The planks on the bridge had been entirely carried away, but had been replaced. The county commissioners had advertised for proposals to repair the bridges and the bulkheads of this causeway. A contract had been entered into for that purpose, and a notice that the bridges had been let out for repair, and that the county commissioners would not be responsible for any damages while crossing, had been, by direction of the commissioners, posted up on each side of theswamp. Under the contract above mentioned, this particular bridge was repaired.
When the plaintiff rested, a motion for a non-suit was made, which was granted, the presiding judge holding that the allegata was not sustained by the probata, as it appeared that the plaintiff was in a vehicle, instead of “riding,” when the accident occurred; which variance would be important, if the law, as it existed before the amendment of 1892, applied to the case; for that declared that the “person so injured could not recover, if his load exceeded the ordinary weight,” &c. But his honor held that the amendment of ¡the law in 1892, making certain changes in the terms of section 1087 of the General Statutes,
From this order the plaintiff appeals upon the following exceptions: I. That it was error to rule, that there was such a variance between the allegations of the complaint and the proof of that paragraph which alleged that while plaintiff was “riding” his animal along the highway, &c., the proof being that the plaintiff was “riding in a road-cart” along the said highway and over the said bridge at the time the animal was injured, to warrant a dismissal of the plaintiff’s complaint, &c. II. That the question of “weight” being one of fact, should have been submitted to the jury for their consideration. III. That it was error in the judge to rule that this action was to be controlled by the act of 1892, the injury haviug occurred prior to the passage of the said amendment. IY. That it was error in the judge to rule that the county commissioners were not careless nor negligent, in allowing the plank on the bridge in the highway, which was rotten and decayed, and in which the said animal broke through and was crippled, to remain on the bridge on the said high-way, to the danger of the traveling public. Y. That the question of the carelessness or neglect of the county commissioners was one of fact, and should properly have been submitted to the jury. YI. That it was error in the Circuit Judge to grant the order of nonsuit, dismissing the plaintiff’s complaint. YII. That it was error in the judge not to allow the case to go to the jury for their verdict. YIII. That non-suit was improper; amendment was the proper remedy, and plaintiff should have been allowed to amend his complaint.
The judgment of this court is, that the judgment of the Circuit. Court be affirmed, and the appeal dismissed.