Mason v. County of Spartanburg

40 S.C. 390 | S.C. | 1894

The opinion of the court was delivered by

Mr. Justice McGowan.

This was au action against the County of Spartanburg for damages on account of personal injuries alleged to have been sustained through defects in the repair of a highway of the said county. The complaint, among other things, alleged that in the month of February, 1892, the plaintiff was in his buggy, driving over and along a certain highway of the County of Spartanburg, where it approaches Ferguson’s Creek at or near its mouth, intending to cross said creek over a causeway and bridge, when, owing to the defects and want of repair, and improper construction of the highway, abutments of the bridge, and the bridge itself, the animal he was driving “became a little frightened,” as plaintiff believes, at a large hole, which had been allowed to appear in and across said highway, extending almost the whole breadth of said highway, just where the timbers of the bridge rest on the embankment, and a portion of the said causeway and abutments of said bridge, consisting of dirt, timbers, and rock, gave way, and the plaintiff and his buggy, along with said dirt, rocks, and timbers, were thrown violently down the said embankment, thereby breaking his leg, and otherwise wounding and bruising him, causing great mental and physical pain, and disabling him, to his damage in the sum of $3,500, &c. The defendant county answered: First. Denying each and every material allegation of the complaint. Second. Alleging that whatever injuries the plaintiff received, at the time and place stated in the complaint, were caused by, and the result of, his own carelessness and negligence; and the defendant was in no way responsible therefor.

The cause came on for trial before his honor, Judge Wallace, and a jury. The plaintiff offered his testimony, which is all in the Brief, and when he rested, the defendant company moved for a non-suit, on the ground that there was no evidence tending to prove that the plaintiff had been injured through a defect in the highway, causeway, or bridge, but that the injury was caused by his horse becoming frightened, which motion, after, argument, was granted; and the plaintiff now appeals to this court to reverse the order of non-suit upon the following grounds: I. That his honor erred in holding that there was no evidence tending to show that the injuries complained of were caused by a defect in the repair of the highway, causeway, or bridge. II. In not submitting the case to the jury and allowing them to say whether or not the injuries complained of were caused by a defect in the repair of the highway, causeway, or bridge. III. In ruling and holding that there was no evidence of the facts alleged in the complaint for the jury to pass upon. IV. In granting the motion for a non-suit, after evidence had been introduced tending to prove that the plaintiff had received bodily injury through a defect in the abutment or causeway and the bridge,” &c.

1 The exceptions may be considered together, as they all, in different forms, make the same question, whether there was any evidence tending to show injury to the plaintiff, through a defect in the repair of the highway or bridge, which the presiding judge should have submitted to the jury. There certainly was evidence that the plaintiff received injury, and that it was caused by the backing and suddenly turning of the horse; that, in order, was caused by the fright of the horse, and it is only the opinion of Mr. Mason that the fright was caused by the hole under the bridge, after the forefeet of the animal were on the bridge. In what respect was that a defect, and how did it cause the injury? TTpon this point we have examined the evidence closely, and we think that the testimony of both Mr. Mason and his wife (who was in the buggy with him) show that the injury was not received through the hole under the end of the bridge, but from the fright of the horse. The plaintiff testified that Mrs. Mason was in the buggy with him. “They had a bridge to cross over Ferguson’s Creek. They were driving along and came to the bridge. My horse stepped his forefeet on the bridge; there was a hole under the bridge, where it struck the abutment. My horse shied and turned entirely; as she wheeled and turned, threw me over the abutment, and as I fell, the rock and several timbers that were rotten fell, and my leg was broken, and I was nearly killed.” Mrs. Mason testified that “she [the animal to the buggy] was a new horse, and I had not been riding behind her; our other horse I could drive myself. I did not object [to going over the bridge], but I asked Mr. Mason if he was not going to lead over. I was run off a bridge once before, and after that I always wanted some one to lead over,” &c. We see no error in the order for non-suit. See Acker v. Anderson County, 20 S. C., 498, and Brown v. Laurens County, 38 Id., 282.

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