117 S.E. 533 | S.C. | 1923
Lead Opinion
The opinion of the Court was delivered by
The exceptions numbered 1, 2, and 3 will be considered together. The admissibility of testimony is ordinarily addressed to the discretion of the presiding Judge, and his ruling is not the subject of appeal unless there was an erroneous exercise of his discretion, which has not been made to appear in this case. These exceptions are therefore overruled.
“Mr. Foreman, and Gentlemen of the Jury: The sum and substance of the plaintiff’s complaint, as set forth therein, is that on the date and at the time set out in here, he was traveling on the public highway in this county, and that there was a bridge over the same, and that he undertook to cross it, and that the bridge gave way, and that he and his automobile were thrown into the stream, and he was damaged and injured to the extent of $10,000, and he alleges that the same was due to the negligence and carelessness of the' county officers in maintaining and repairing that bridge, whose duty it was to do so.
“The defendant, Aiken County, answers that complaint, and denies the material allegations of it, and says that it was plaintiff’s own negligence that caused the injury; and that if the defendant was negligent, that the plaintiff was negligent also, and that his negligence contributed to the cause of the injury, and as a third defense sets up that it was caused by an act of God.
“Those are the issues that you have got to pass on in this case. This last defense, which refers to their not having had a reasonable time in which to repair that bridge, has nothing to do with this case. There is no evidence of written notice having been given to the supervisor.”
Section 1972, Code of Taws 1912, is as follows:
“Any person who shall receive bodily injury or damage in his person or property through a defect or in the negligent repair of a highway, causeway, or" bridge, may recover, in an action against ffhe county, the amount of actual damage sustained by him by reason thereof: Provided, such person has not in any way brought about such injury or damage by his own-act, or negligence contributed thereto. If such defect in any road, causeway, or bridge existed before such injury or damage occurred, such damage shall not be recovered*295 by the person so injured, if his load exceeded the ordinary weight: Provided, farther, that such county shall not be liable unless such defect was occasioned by its neglect or mismanagement: Provided, farther, that if in any case brought under this section it is made to appear that before the damage occurred the supervisor of such county had been notified in writing, by any citizen, that the highway, causeway or bridge, at or on which the damage' occurred-was defective, or needed repair, the burden of proof as to the negligence of .county officials shall be upon the county to. show, either that such defect did not in fact exist, or that it had been properly repaired, or.that a reasonable time had not elapsed since such notice within which to make such repairs.’.’
As it was not made to appear that, before the injury was sustained, the Supervisor of Aiken Cuonty had been notified in writing, by the plaintiff that the highway or bridge on which the damage occurred was defective or needed repair, the last proviso has no application to the facts of this case. It was incumbent on the plaintiff, not only to allege and prove that his injury was not brought about by his own negligent act, and that he did not negligently contribute thereto, but it was also incumbent on him to allege and prove that the negligence of the defendant was the cause of the injury. The following decisions show that this construction is rendered necessary by the peculiar provisions of Section 1972, supra: Walker v. Chester County, 40 S. C., 342; 18 S. E., 936. Cotton Mills v. Springs, 56 S. C., 534; 35 S. E., 222. McFail v. Barnwell County, 57 S. C., 294; 35 S. E., 562. Kennedy v. City of Greenville, 78 S. C., 124; 58 S. E., 989. Heape v. Berkeley County, 80 S. C., 32; 61 S. E., 203. McLees v. City of Anderson, 82 S. C., 565; 64 S. E., 750. Scott v. Richland County, 83 S. C., 506; 65 S. E., 729. Stone v. City of Florence, 94 S. C., 375; 78 S. E., 23.
It will thus be seen that the ruling of his Honor, the presiding Judge, that “this last defense, which refers to their
It is only necessary to cite the case of Sloan v. White, 105 S. C., 226; 89 S. E., 564, to show that the fifth exception cannot be sustained.
Reversed and remanded for new trial.
My understanding of the law is that the admissibility of evidence is a question of law and is not addressed to the discretion of the trial Judge. I think that exceptions 1, 2, and 3 should be sustained.
Lead Opinion
May 8, 1923. The opinion of the Court was delivered by The exceptions numbered 1, 2, and 3 will be considered together. The admissibility of testimony is ordinarily addressed to the discretion of the presiding Judge, and his ruling is not the subject of appeal unless there was an erroneous exercise of his discretion, which has not been made to appear in this case. These exceptions are therefore overruled. *294
The next exception that will be considered is No. 4. His Honor, the presiding Judge, thus construed the complaint and answer:
"Mr. Foreman, and Gentlemen of the Jury: The sum and substance of the plaintiff's complaint, as set forth therein, is that on the date and at the time set out in here, he was traveling on the public highway in this county, and that there was a bridge over the same, and that he undertook to cross it, and that the bridge gave way, and that he and his automobile were thrown into the stream, and he was damaged and injured to the extent of $10,000, and he alleges that the same was due to the negligence and carelessness of the county officers in maintaining and repairing that bridge, whose duty it was to do so.
"The defendant, Aiken County, answers that complaint, and denies the material allegations of it, and says that it was plaintiff's own negligence that caused the injury; and that if the defendant was negligent, that the plaintiff was negligent also, and that his negligence contributed to the cause of the injury, and as a third defense sets up that it was caused by an act of God.
"Those are the issues that you have got to pass on in this case. This last defense, which refers to their not having had a reasonable time in which to repair that bridge, has nothing to do with this case. There is no evidence of written notice having been given to the supervisor."
Section 1972, Code of Laws 1912, is as follows:
"Any person who shall receive bodily injury or damage in his person or property through a defect or in the negligent repair of a highway, causeway, or bridge, may recover, in an action against the county, the amount of actual damage sustained by him by reason thereof: Provided, such person has not in any way brought about such injury or damage by his own act, or negligence contributed thereto. If such defect in any road, causeway, or bridge existed before such injury or damage occurred, such damage shall not be recovered *295 by the person so injured, if his load exceeded the ordinary weight: Provided, further, that such county shall not be liable unless such defect was occasioned by its neglect or mismanagement: Provided, further, that if in any case brought under this section it is made to appear that before the damage occurred the supervisor of such county had been notified in writing, by any citizen, that the highway, causeway or bridge, at or on which the damage occurred was defective, or needed repair, the burden of proof as to the negligence of county officials shall be upon the county to show, either that such defect did not in fact exist, or that it had been properly repaired, or that a reasonable time had not elapsed since such notice within which to make such repairs."
As it was not made to appear that, before the injury was sustained, the Supervisor of Aiken County had been notified in writing, by the plaintiff that the highway or bridge on which the damage occurred was defective or needed repair, the last proviso has no application to the facts of this case. It was incumbent on the plaintiff, not only to allege and prove that his injury was not brought about by his own negligent act, and that he did not negligently contribute thereto, but it was also incumbent on him to allege and prove that the negligence of the defendant was the cause of the injury. The following decisions show that this construction is rendered necessary by the peculiar provisions of Section 1972, supra: Walker v. Chester County,
It will thus be seen that the ruling of his Honor, the presiding Judge, that "this last defense, which refers to their *296 not having had a reasonable time in which to repair the bridge, has nothing to do with this case," was prejudicial to the rights of the appellant, and this exception is sustained.
It is only necessary to cite the case of Sloan v. White,
Reversed and remanded for new trial.
MR. CHIEF JUSTICE WATTS concurs.
MR. JUSTICE FRASER, (see opinion). MR. JUSTICE COTHRAN, (see below), and MR. JUSTICE MARION, all concur in result.
MR. JUSTICE COTHRAN, My understanding of the law is that the admissibility of evidence is a question of law and is not addressed to the discretion of the trial Judge. I think that exceptions 1, 2, and 3 should be sustained.
MR. JUSTICE FRASER, I concur in the result.
I. It seems to me that the height of previous floods was relevant. It seems to me that a bridge should be strong enough to withstand the strain that will probably be put upon it. It may be that a prudent man might rely upon a bridge that had stood all the floods that have been known. A bridge that might be safe at one place might be unsafe at another. The jury should know the facts in order to determine the question of negligence.
II. So, also, as to the number of miles of road in a county; the number of miles of public road might determine the question of negligence in failing to learn of defects and the time in which repair can reasonably be expected to be made. The greater the number of miles, the longer time is required to inspect, and the longer time required to repair.
I think these two assignments of error should be sustained.
MR. JUSTICE MARION concurs. *297
Concurrence Opinion
I concur in the result.
I. It seems to me that the height of previous floods was relevant. It seems to me that a bridge should be strong enough to withstand the strain that will probably be put upon it. It may be that a prudent man might rely upon a bridge that had stood all the floods that .have been known. A bridge that might be safe at one place might be unsafe at another. The jury should know the facts in order to determine tifie question of negligence.
II. So, also, as to the number of miles of road in a county; the'number of miles of public road might determine the question of negligence in failing to learn of defects and the time in which repair can reasonably be expected to be made. The greater the number of miles, the longer time is required to inspect, and the longer time required to repair. I think these two assignments of error should be sustained.
