Burnett v. City of Greenville

• Decision Date: 16 January 1917
• Docket Number: 9573.
• Citation: 91 S.E. 203,106 S.C. 255
• Parties: BURNETT v. CITY OF GREENVILLE.
• Court: South Carolina Supreme Court

91 S.E. 203

106 S.C. 255

BURNETT v. CITY OF GREENVILLE.

No. 9573.

Supreme Court of South Carolina

January 16, 1917

Appeal from Common Pleas Circuit Court of Greenville County; Frank B. Gary, Judge.

Action by W. M. Burnett against the City of Greenville. Judgment for defendant, and plaintiff appeals. Set aside and remanded.

Townes & Earle, of Greenville, for appellant.

Oscar Hodges, of Greenville, for respondent.

GAGE J.

Action for damages to the person and to personal property; order sustaining demurrer to the complaint; appeal by the plaintiff. There are four exceptions, but only one issue: Does the complaint state a case? The complaint ought to be reported.

The statute allows an action to (1) "any person who shall receive * * * damages in his person or property (2) through a defect in any street * * * (3) or by reason of defect or mismanagement of anything under the control of the corporation." The numerals are supplied.

The plaintiff received the damage to his person and to his car there is no denial of that; but it is denied that the hurt came through a defect in the street. If the plaintiff has an action, it arises out of those words of the act we have prefaced by the numeral (2), to wit, "through a defect in any street." These words were recently construed by us in an elaborate opinion, and we there held them to include the keeping of a street in such physical conditions that it will be reasonably safe for street purposes. Irvine v Greenwood, 89 S.C. 511, 72 S.E. 228, 36 L. R. A. (N. S.) 363.

The advent of the automobile, like the coming of the locomotive engine, and like a startling application of the laws of nature to any new appliance, is about to change society. If that device is of inestimable use to men, it is also of great and increasing peril to the people.

We take notice of these facts: That Greenville is a city of some 25,000 or more inhabitants, and that Main street is a great thoroughfare thickly settled and much used by the people. The amazing allegation of the complaint is that the plaintiff was struck with great force by an automobile running on that street at a terrific rate of speed, probably 75 to 100 miles an hour, which was using said street as a place of practice for hill climbing * * * with the knowledge and consent of the city, its mayor, couneilmen, and policemen. That is admitted to be true.

It is suggested by the city that the dedication of the public ways to automobile racing lay wholly outside of the powers of the corporation, for...