72 S.E. 228 | S.C. | 1911
October 2, 1911. The opinion of the Court was delivered by The town of Greenwood owns and operates a municipal lighting plant for the purpose of lighting its streets, and furnishing electric current to its citizens for domestic purposes. This plant is controlled and managed by a board of public works, composed of three commissioners, elected by the qualified electors of the town, who are vested by section 2010 of the Civil Code, volume I, with full power and authority to build, maintain, operate and manage the plant. This action was brought against the town of Greenwood and the board of public works by H. E. Irvine, as administrator, to recover damages for the alleged unlawful and wrongful killing of his son, Claude Irvine. The facts, as alleged in the complaint, and established by the plaintiff's evidence, are these: On August 23, 1908, the deceased, a boy of seventeen years of age, was engaged with two companions in playing a game known as "peg" on Jordan street, in the town of Greenwood, not far from its intersection with Parker street. On the side of Jordan street, a few feet from the point of intersection, and on the edge of the drain between the sidewalk and the street, was an electric light pole from which an arc light was suspended. A metallic chain, used for the purpose of raising and lowering the light, hung down the side of the pole next to the street and formed a loop about five or six feet above the ground. As Irvine, in the course of the game, was running from the street to the sidewalk near this post, he slipped on the edge of the drain, caught hold of the loop in an effort to save himself from falling, and was killed by a strong electric current transmitted to his body through the chain.
The complaint alleged in substance three acts of negligence and wantonness on the part of the defendants: First, that they had allowed the chain to come in contact with the wires overhead and to hang a short distance above the *514 street, so that any traveler might touch it; second, that the defendants had removed or allowed to be removed the insulation from the wires at the point of contact with the chain; third, that they had failed to equip the light with proper safety appliances. The defendants demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action, in that no action would lie against a municipality or its agent for negligence in carrying on its corporate functions, unless such action were authorized by statute, and that no liability had been created by statute under the facts stated.
The Circuit Court sustained the demurrer as to the defendant, the Board of Public Works, but overruled it as to the defendant, the Town of Greenwood, holding that the acts of negligence specified in the complaint might be considered as a defect in the street, and that under section 2023 of the Civil Code, volume I, an action would lie against a municipality for injuries resulting therefrom. At the close of the plaintiff's testimony the defendant moved for a nonsuit, which was granted by the Court on the ground that the plaintiff had failed to prove that the deceased had not been guilty of contributory negligence when he received the injury. From this order of nonsuit the plaintiff appeals.
Whenever the question has arisen it has been held in this State that a municipality is not liable in damages for a tort committed by any of its officers or agents unless made so by statute. White v. City Council of Charleston, 2 Hill 572; Coleman v. Chester,
Notwithstanding this weight of authority we think there are cogent reasons for rejecting the distinction. The question was not decided in Mauldin v. Greenville,
In Hopkins v. Clemson College,
In endeavoring to put into practical effect the supposed distinction between public function and private business or enterprise of municipal corporations, it will hardly be doubted that the Courts will find themselves involved in a maze of shadowy distinctions. Where is the line of demarkation to be drawn? If it could be satisfactorily laid out now, it could not long continue to receive general recognition; for the functions of government, especially municipal government, are being extended almost every day. That which today might clearly appear to be a private business of the corporation, authorized by law, in a short time might appear to be a plain public obligation and a governmental function. Take for example the water supply of a city. A short time ago it was held that while a city exercised a public function in providing water for its fire engines, although used almost exclusively for the protection *517
of private property, yet when it ran pipes to private houses and there supplied water to its inhabitants for drinking and other domestic purposes, it was acting outside of true governmental functions and engaging in private business.Judson v. Borough of Winsted (Conn.),
Expressing the inclination of the Court to reject the distinction contended for, Mr. Justice McGowan says in Black
v. Columbia,
The confusion which has resulted from the refinements and distinctions attempted by other Courts with respect to the liability of municipal corporations for torts committed by officers or employees is so great that it would be difficult if not impossible to deduce from them a rule which could *518
be applied with confidence by the public or the bar. This is made apparent by the study of any well considered text or opinion on the subject, such as the opinion of Chief Justice Gray in Hill v. Boston,
After much consideration of the authorities in this State and elsewhere it seems to us the more logical conclusion that the Courts should not undertake to say that any functions of a municipal corporation are private and not governmental, but on the contrary should hold that municipal corporations are created solely for public and governmental purposes, and that all powers granted to them by the General Assembly under the sanction of the Constitution are to be exercised as public and governmental functions for the benefit of the municipal community. Indeed this view of powers granted is required by the definition of a municipality, for an essential part of the definition is that the charter be granted for the purpose of subordinate self-government. Certain it is that sections 3, 4 and 5 of article VIII of the Constitution of this State contemplate that the construction and operation of water and electric plants, not only for the purposes of the corporation, strictly speaking, but for supplying citizens of the municipality with light and water, shall be a public purpose for which the municipality may incur debts and levy taxes.
There is another strong reason for the rejection of the distinction contended for, which applies with special force in this State. Municipalities are brought into existence by the legislative branch of the government, and it is peculiarly the province of the General Assembly not only to confer the powers but to determine the extent of the liability of such corporations. Having in view the doctrine long ago laid down by the Courts of this State that municipal corporations are liable for torts only when made so by legislative enactment, the General Assembly has by law expressed *519 its will as to the extent of the liability of such corporations for torts. The Courts are therefore bound to restrict the liability to the terms of the statute; and the statute authorizes no distinction between governmental and public duties and supposed private municipal enterprises.
But even if the distinction contended for were recognized, we do not think this case could fall under it. The death of plaintiff's intestate was due to contact with a wire suspended from a pole supporting one of the arc lights put up for the purpose of illuminating the streets of the town of Greenwood. The lighting of the streets of a city is universally recognized as a public and governmental function. It cannot alter the case that the same plant which supplied electricity for the street light also supplied the electricity for the lights in private dwellings and business houses.
The next question is whether the alleged tort of the municipal authorities fell within the terms of the act of 1892 (21 Stat. 91), now incorporated in the Civil Code as section 2023, which reads as follows: "Any person who shall receive bodily injury, or damages in his person or property, through a defect in any street, causeway, bridge, or public way, or by reason of defect or mismanagement of anything under the control of the corporation within the limits of any town or city, may recover, in an action against the same, the amount of actual damages sustained by him by reason thereof. If any such defect in a street, causeway or bridge existed before such injury or damage occurred, such damage shall not be recovered by the person so injured if his load exceed the ordinary weight:Provided, The said corporation shall not be liable unless such defect was occasioned by its neglect or mismanagement:Provided, further, Such person has not in any way brought about such injury or damage by his or her own negligent act, or negligently contributed thereto."
In the case of Dunn v. Barnwell,
But we are unable to give the duty of keeping streets in repair the narrow meaning contended for by respondents. To keep a street in repair means to keep it in such physical condition that it will be reasonably safe for street purposes. It is not enough that its surface should be safe; a street is not in repair when poles or wires or other structures are so placed in or over it as to be dangerous to those making a proper use of the street. In Duncan v. Greenville,
Forceful argument was presented in support of the position that no cause of action arose because the street was safe for the ordinary purposes of travel, and plaintiff's intestate, who was seventeen years of age, would not have been killed if he had not been using the street for the purpose of playing a ball game, a purpose for which it was not intended; and that the nonsuit must be sustained on that ground. The Court has given much consideration to this question, important not only to the parties in this case, but to the general public.
There can be no doubt that the main purpose of streets and roads is for travel. They serve this purpose not only as avenues of traffic and of social communication, but as a means for the people to obtain at will the pleasurable sensation of locomotion and change of scene and environment. *521 In furtherance of these purposes, streets and roads are now burdened with street railways and trolley lines. The necessity of having the streets lighted in order that they may serve these purposes make any reasonable means to that end, such as the placing of electric light wires, a proper burden on the streets of a town or city. But while those mentioned above are the main and dominant purposes of a street, to which when the occasion arises others must yield, still there are other purposes for which streets and roads have always been used, and which become more and more urgent as population becomes more and more dense. One who wishes to build on a city lot must often of necessity be allowed temporary use of a portion of the street for placing his material. Streets and roads are often used for public meetings held for the enlightenment or amusement of the people. So, likewise, children and youths have always used streets for their sports, subject to the regulation of municipal ordinance and subject to the use of the streets for the other purposes above set out. The necessity for reasonable use of this kind becomes constantly more pressing with the increase in the size of towns and cities, and the decrease of home space. To vast numbers of boys and girls the street affords the only place of sport and the only outlook from a pent up home. The interest of the State is no less vital that these boys and girls should have a place for development of body and spirit by out of door sport than its interest that they should have the public school as a place for mental training. Indeed, it is not to be doubted that arrested and abnormal development of men and women which results in the great burden of crime borne by society is due largely to the lack of parks and playgrounds where the joy of activity in the fresh air may be found.
It is no doubt true that the primary duty of the municipal authorities is to keep the streets safe and in good condition for travel, and if in doing that it becomes necessary to make them unfit and dangerous for the play of boys and *522 girls, no responsibility falls on the municipality; and it is also true that the police power extends to forbidding play in streets dangerous or unfit for that purpose from any cause; nevertheless, municipal authorities are bound to take notice and have a reasonable regard for the fact that many streets are used for the play of boys and girls and that they may be properly so used without material interference with the main uses above set out.
Viewing the general use of the street by boys and girls for play, and the long acquiescence by the public in such use when it has not interferred with the other uses mentioned, and considering the widening scope of the duties of the State, and especially of municipal corporations, to the individual, it seems clear that the Court should not lay it down, as a proposition of law applicable to all cases, that playing by boys and girls while they are still of the age of youthful sportiveness is an illegitimate use of a street, not to be anticipated by the authorities whose duty it is to keep highways in a reasonably safe condition.
The earlier and later authorities on the subject are in direct conflict. The doctrine first held in this country is thus forcibly stated by Chief Justice Bigelow in Blodgett v.Boston, 8 Allen, 237, which was an action for damages received by a boy eleven years old while engaged in play on a street: "The highway is to be kept safe and convenient for all persons having occasion to pass over it, while engaged in any of the pursuits or duties of life. If this be not the limit beyond which the duty and corresponding liability of cities and towns in relation to the subject matter do not extend, we are unable to see where the line can be drawn. And yet it is plain that there must be some limit. A town cannot be held responsible for every case of damage to person or property which may happen by reason of a defect in a highway, without regard to the use to which it was appropriated at the time of the accident by the person injured. Suppose, for example, a juggler, or gymnast, *523 should occupy a portion of a street or road to exhibit his feats of skill or agility or strength. He certainly could not be regarded in the light of a traveler while so using the highway, nor could he claim damages of a city or town for injuries sustained by him in his person or property during the performance, although they might have been occasioned in whole or in part by a defect in the highway. Take another example of a different character: A boy, while using a portion of a highway solely for the purpose of enjoying the amusement of sliding over the snow in a sled, meets with an injury attributable to some defect arising from the accumulation of snow or ice. It would hardly be contended that the city or town in which such an accident happened could be held liable for the damages thereby occasioned."
The same doctrine was stated and applied in Tighe v.Lowell,
The matter has not been before any Court of last resort in this State, but the conclusion we have stated is in accord with all the later decisions. Modern judicial opinion and *524
the reason for it is thus expressed in Gibson v. Huntingdon,
The same principle has been applied in the following cases: Owensboro v. York (Ky.),
It is true that in the decisions cited the ages of the children injured ranged from three to fourteen years, but we do not think this Court can say, as a matter of law, that a boy of seventeen has passed the age of youthful sportiveness and reached such a mature age that play in the street *525
is not to be expected of him, nor allowed to him. We express no opinion as to the correctness of the rulings of the Supreme Court of Mississippi in Jackson v. Greenville,
Under some circumstances and in some localities it would no doubt be held an improper use of the street and contributory negligence, as a matter of law, for boys of seventeen to incur the risk of playing on the street. But there are no circumstances here to take the case out of the general rule that it is for the jury to determine under all the circumstances whether the use of the street by the boys was a legitimate use, and whether the danger was so apparent that they were guilty of contributory negligence.
It is the judgment of this Court that the judgment of the Circuit Court be reversed, and the cause be remanded to that Court for a new trial.