| S.C. | Feb 16, 1894
Lead Opinion
The opinion of the court was delivered by
This was an action to recover damages, alleged to have been sustained by reason of a defective highway. The complaint stated that on February 23, 1893, the plaintiff was passing along the public highway of Chester County, on the Worthy’s Ferry road, at a point between Dry Fork aud the intersection of the said road by the Georgia,
The defendant answered, denying each and every statement in the said complaint contained; that if the highway referred to in the complaint was defective, it was due to Providential causes, and not to any carelessness on the part of the defendant county, or its agents or servants ; that the defendant and its agents and servants used due care and diligence in repairing said highway and keeping the same in good repair, and that if the plaintiff, was injured in her person or property, such injury was not caused by any negligence or carelessness on the part of the defendants or its agents and servants, but was owing to the carelessness and negligence of the plaintiff herself, &c.
The cause came on to be heard at the October term, 1893, before Judge Gary and a jury, when the defendant interposed an oral demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it failed to allege that the plaintiff did not in any way bring about her injury or damage by her own act, or negligently contribute thereto; and, further, that it failed to allege that, at the time of the injury, the plaintiff’s load did not exceed the ordinary weight, &c. The judge sustained the demurrer, and dismissed the complaint; whereupon the plaintiff appeals to this court, upon the ground that the judge erred in holding
from defects in the repair of highways, bridges, &c. See Young v. Charleston, 20 S. C., 116. But the legislature (section 1087 of the General Statutes) by act gave a right of action to persons suffering damage through a defect in the repairs of roads, &c., but denied damages to persons hauling “loads” in excess of the ordinary weight. But whilst this was the law, it was held that the general rule as to contributory negligence applied, but could only be shown as matter of defence. See Acker v. County of Anderson, 20 S. C., 495, and All v. County of Barnwell, 29 S. C., 161. This was the law until the amendment of 1892 was passed, which added the following remedial provisions, all in one section of the act, and clearly within the purview of the same: “Provided, Such person has notin any way brought about such injury or damage by his own act, or negligently contributed thereto. If such defect in any road, causeway, or bridge existed before such injury or damage occurred, such damage shall not be recovered 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,” &c.
This action was commenced after this amendment became law, and now the question arises for the first time as to its proper construction. It will be observed that no reference is made to it in the complaint, which was framed just as if the amendment had never been passed. Was it necessary that the complaint should have stated affirmatively that the plaintiff “had not brought about the injury or damages by her own act, or negligently contributed thereto?” If not, we can not understand what was accomplished by the amendment. We can
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Concurrence Opinion
I concur in the result. The right of action in this case being based entirely upon a special statute, it seems to me that the conditions upon which such right is conferred must appear in the complaint, for otherwise no right of action is stated.