Brasington v. South Bound R. Co.

• Citation: 40 S.E. 665,62 S.C. 325
• Parties: BRASINGTON v. SOUTH BOUND R. CO.
• Decision Date: 20 January 1902
• Court: United States State Supreme Court of South Carolina

40 S.E. 665

62 S.C. 325

BRASINGTON v. SOUTH BOUND R. CO.

Supreme Court of South Carolina

January 20, 1902

Appeal from common pleas circuit court of Richland county; Townsend Judge.

Action by James L. Brasington against the South Bound Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. H Lyles, for appellant. John P. Thomas, Jr., and M. L. Smith for appellee.

GARY J.

The above-entitled action was commenced on the 15th of March, 1900, for the recovery of damages for injuries alleged to have been sustained by the plaintiff by falling into a cut excavated by the defendant in building its line of railway through the city of Columbia at the point where said line crosses Laurel street. The specifications of negligence are thus alleged in the complaint: "That the defendant did carelessly, wantonly, recklessly, and negligently, and in disregard of the provisions of said ordinance and of the duty which it owed to passengers on said streets and sidewalks, permit said excavation or cut in and across Laurel street to remain unguarded, and without any fence, railing, guards, or other structures to prevent accidents at the sides of said excavation or cut; and wantonly, recklessly, carelessly, and negligently omitted to fix and keep any lights near said excavation or cut, and in like manner omitted to erect any bridge or other crossing on said street and on the sidewalks thereof; and wantonly, carelessly, recklessly, and negligently made said excavation or cut more than twenty feet below the grade of said Laurel street at the crossing and more than twenty-five feet across the top, in open and direct violation of the plain provisions of said ordinance and in disregard of the express conditions upon which said company was authorized to occupy and use the said street and make excavations and cuts therein." The jury rendered a verdict in favor of the plaintiff for $3,000.

The defendant appealed upon exceptions, the first of which is as follows: "(1) Because, against the objection of the defendant, his honor the presiding judge allowed the plaintiff to introduce section 101 of the Revised Ordinances of the City of Columbia, reading as follows, to wit: 'Excavations in any street or alley shall be securely covered at all times when persons are not at work therein; and such excavations, when made for the purpose of laying gas or water pipes, shall have the earth new rammed when closing the same, and the street left in as good condition as before said excavations, under penalty of five dollars, to be collected from the party ordering the excavation to be made,'--when said ordinance had not been pleaded, and the same was irrelevant and incompetent, and tended to establish a breach of duty on the part of the defendant which had not been alleged in the complaint." It is true, Mr. Chief Justice McIver, in City Council of Charleston v. Ashley Phosphate Co., 34 S.C. 550, 551, 13 S.E. 846, says: "It is true that the complaint does contain an allegation that 'the plaintiffs, on the 27th day of December, 1888, for the purpose of raising a revenue, and in exercise of the taxing power, passed an ordinance entitled "An ordinance to regulate licenses for the year 1889," whereby, inter alia, it is provided that phosphate rock mining or manufacturing companies or agencies engaged or intending to engage in business in said city shall, on or before the 20th day of January, A. D. 1889, obtain each a license therefor, and shall be required each to pay for the same the sum of $500.' But there is no allegation that such ordinance, thus referred to by date and title, contained any provision authorizing the enforcement of the payment of such license fee by suit or otherwise, as the act above referred to authorized; nor is there any allegation that such ordinance contained no provision at all for the enforcement of such payment. The reference to this ordinance by date and title is not sufficient, for, as is said in 1 Dill. Mun. Corp. (4th Ed.) § 346: 'The courts, unless it be the courts of the municipality, do not judicially notice the ordinances of a municipal corporation, unless directed by charter or statute to do so. Therefore such ordinances, when sought to be enforced by action, or when set up by the defendant as a protection, should be set out in the pleading. It is not sufficient that they be referred to generally by the title or section,'--though probably they need not be set out in haec verba, a statement of the substance with reference to the date, title, and section being sufficient. See, also, In re Oliver, 21 S.C. 323, 53 Am. Rep. 681. Here, however, there is no allegation that the ordinance in substance provides for the enforcement of the payment of the license fee by action. It seems to us, therefore, that the allegations in this complaint are not sufficient to constitute the cause of action sought to be enforced therein, but that a further allegation was necessary for that purpose, either to the effect that provision had been made in the ordinance, as authorized by the act of 1881, supra, for the enforcement of the payment of such license tax by action, or that no provision whatever had been made for that purpose, which would have raised the question whether, in the absence of any provision at all, the court of common pleas, by virtue of its general jurisdiction, could enforce a right conferred by an ordinance of a municipal corporation by an ordinary action, where no other mode of doing so has been provided by the ordinance." But in that case the ordinance was the foundation of the plaintiff's cause of action, and the rule there stated does not apply in other cases. In Nohrden v. Railroad Co., 54 S.C. 496, 32 S.E. 525, Mr. Chief Justice McIver points out this distinction when he says: "The second ground upon which this motion is based, or, rather, the second defect in the statements of the complaint relied on to support the motion,--the failure to state in paragraph 2 of the third cause of action certain facts,--cannot be sustained. The defect relied on is the failure to state 'the title, date, and authority for passage and publication of the alleged Revised Ordinances of the city of Charleston, and the substance of the alleged section 605 thereof, and the same with regard to the alleged amendment thereto referred to, in said paragraph. This is not an action to enforce the performance of any duty imposed by an ordinance of the city of Charleston, or to enforce the payment of any tax or penalty imposed by such ordinance, but the cause of action here is the negligence of the defendant company, resulting in the death of the intestate, and the ordinances of the city are only referred to as showing such negligence. The case of City Council of Charleston v. Ashley Phosphate Co., 34 S.C. 541, 13 S.E. 845, relied on by counsel for appellant, does not, therefore, apply to this case." If the rule laid down in the case of City Council of Charleston v. Ashley Phosphate Co. had been applied in the case of Nohrden v. Railroad Co., the objection to the ordinance would have been sustained. In 15 Enc. Pl. & Prac. 427, under the head of "Violation of Ordinances Relied on as Negligence," it is said: "It is, of course, unnecessary to plead the ordinance when the action is not founded upon it; but, nevertheless, in such cases it is, in some jurisdictions, admitted in evidence on the question of negligence." This exception is overruled.

The second exception is as follows: "(2) Because, against the objection of the defendant, the plaintiff was allowed to introduce in evidence section 347 of the Revised Ordinances of the City of Columbia, as follows, to wit: 'In order to provide for the safety of the public at places where the tracks of the steam railroad companies cross the streets of the city of Columbia, it shall be the duty of said companies to station during the daytime at such crossings as in the judgment of the city council the public safety may require, to be designated by city council, a flagman, whose duty it shall be to show a red flag whenever a train may be approaching or crossing such streets; and it shall also be the duty of said companies to provide and maintain at such crossings a good and sufficient light, to burn from thirty minutes after sunset until one hour before sunrise,'--when it had not been pleaded; and was irrelevant and incompetent, and tended to establish a breach of duty on the part of the defendant which had not been alleged in the complaint." This is disposed of by what has just been said, and is overruled.

The third exception is as follows: "(3) Because his honor charged the jury as follows, to wit: 'The complaint in this case has that form,--it is for punitive damages,--it is drawn in that form. *** The damage it sets forth in a manner which would call for punitive damages, provided all the facts (material facts) are proven to the satisfaction of the jury,'--thereby indicating--First, that although the complaint contained no allegation of willful or intentional injury on the part of the defendant, it nevertheless alleged the damage in a manner 'which would call for punitive damages'; and, second, thereby indicating that, if the...