Barksdale v. City of Laurens

• Decision Date: 04 August 1900
• Citation: 36 S.E. 661,58 S.C. 413
• Parties: BARKSDALE v. CITY OF LAURENS.
• Court: South Carolina Supreme Court

36 S.E. 661

58 S.C. 413

BARKSDALE v. CITY OF LAURENS.

Supreme Court of South Carolina

August 4, 1900

Appeal from common pleas circuit court of Laurens county; O. W Buchanan, Judge.

Action by W. Oliver Barksdale, by guardian ad litem, against the city of Laurens, for personal injuries sustained by plaintiff, while in the employment of defendant, by reason of defendant's negligence in the management of a steam roller while repairing its streets. From a judgment of nonsuit, the plaintiff appeals. Affirmed.

N. B Dial, for appellant.

F. P McGowan and W. R. Richey, for respondent.

JONES J.

This action was for damages for personal injuries sustained by plaintiff, a minor of the age of 14 years, while in the employment of defendant, by reason of alleged negligence in the management of a steam roller while repairing the streets of Laurens, whereby plaintiff's foot and leg were caught between the roller and an embankment or the side of the street, mashed, and injured. The appeal is from an order of nonsuit. The motion for nonsuit was based upon the following grounds: "(1) Because the legislature has not given such right of action as that relied on by the plaintiff. (2) Because there is no evidence showing or tending to show that the plaintiff's injury was caused by any negligence of the city of Laurens or of its employés, or by reason of any defect in a street of the said city suffered to exist by any negligence of said city. (3) Because there is no evidence showing or tending to show that the plaintiff's injury was brought about not by his own negligence, or that he did not negligently contribute thereto. (4) Because, if the injury was caused by the negligence of any person other than the plaintiff himself, it was the negligence of a fellow servant, for which the defendant is in no way liable." The order of nonsuit does not indicate the ground upon which it is vested. The exceptions thereto assign error as follows: "(1) Because the circuit judge erred in holding that the act of 1892 under which this action was brought was unconstitutional. (2) Because he erred in not holding that said act was broad enough to cover cases such as the evidence made out in this case. (3) Because he erred in not holding that the defendant was guilty of neglect and mismanagement in repairing its streets, and of operating its machinery in repairing the same. (4) Because he erred in not holding that the plaintiff had made out his case, and that the injury was not brought about by his negligent act, or that he negligently contributed thereto. (5) Because he erred in holding that the injury was caused by plaintiff and his fellow servants. (6) Because he erred in not holding that contributory negligence was a question of defense. (7) Because he erred in granting the motion of nonsuit, and in not allowing the case to go to the jury."

The action was brought under the act of 1892 (21 St. at Large, p 91), now section 1582 of the Revised Statutes, which provides: "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 such town, 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 exceeded the ordinary weight: provided, that said corporation shall not be liable unless said 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." The title of said act of 1892 is, "An act providing for a right of action against a municipal corporation for damages sustained by reason of defects in the repair of streets, sidewalks and bridges within the limits of such municipal corporation." This act was construed in the case of Dunn v. Town of Barnwell, 43 S.C. 401, 21 S.E. 315, wherein ...