Duncan v. Greenville County

• Decision Date: 19 February 1906
• Parties: DUNCAN v. GREENVILLE COUNTY. HANDY v. SAME.
• Court: South Carolina Supreme Court

53 S.E. 367

73 S.C. 254

DUNCAN v. GREENVILLE COUNTY.

HANDY v. SAME.

Supreme Court of South Carolina

February 19, 1906

Appeal from Common Pleas Circuit Court of Greenville County; Prince Judge.

Action by Rosa Duncan and by W. H. Handy against Greenville county. Judgment for defendant, and plaintiffs appeal. Reversed.

Blythe & Blythe, for appellants. Haynesworth & Patterson and B. M Shuman, for respondent.

GARY A. J.

This is the second appeal in these cases, which were heard together as they involve the same question. The opinion in the former appeal is reported in 71 S.C. 170, 50 S.E. 776, 777. The actions arose under section 1347 of the Code of Laws, which provides that "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 therefore: Provided, such person has not in any way brought about such injury or damage by his own act, or negligently contributed thereto." His honor, the presiding judge, charged the jury that "the plaintiff must show that the injury was not the result of any act of his, or that he did not bring about the injury, or contribute thereto, by any negligence on his part, nor that his negligence is a proximate cause. He has to go further and show, before he is entitled to recover against the county, that he did not, through any negligence, contribute in any way to his injury." The sole question presented by the exception is whether there was error in the charge as to the proximate cause of the injury.

This statute was construed in the case of McFail v. Barnwell County, 57 S.C. 294, 302, 35 S.E. 562, and Mr. Chief Justice McIver, who delivered the opinion of the court, used this language: "To maintain this action it was necessary for the plaintiff not only to allege and prove that the injuries of which he complains against the county were 'occasioned by its neglect and mismanagement,' but also that he 'has not in any way brought about such injury or damage by his own act, or negligently contributed thereto.' If, therefore, the injury complained of was in any way brought about by the negligence of the plaintiff, or if he negligently contributed thereto, then the plaintiff under the express terms of the statute, could not recover. The Legislature, by the use of the language above quoted, manifestly intended to declare that in either one of two contingencies the plaintiff could not recover: (1) If the injury was in any way brought about by his own act. (2) If he negligently contributed thereto. Now, if the statute had stopped after declaring the first of these contingencies, then possibly the conclusion might have been that the negligence of the plaintiff, in order to bar a recovery, must be the efficient cause of the injury, or, to use the language of the circuit judge, must be the immediate proximate cause of the injury, as the words 'brought about' seem to imply. But the statute does not stop there, but goes on to declare another...