Cope v. Hampton County

• Decision Date: 26 July 1894
• Citation: 42 S.C. 17,19 S.E. 1018
• Parties: COPE v. HAMPTON COUNTY.
• Court: South Carolina Supreme Court

19 S.E. 1018

42 S.C. 17

COPE

v.HAMPTON COUNTY.

Supreme Court of South Carolina.

July 26, 1894.

Action against County—Negligence—Question fok coukt.

1. An action against a county for damages under a statute must be brought while the statute is in force, as the repeal thereof takes away the right of action.

2. It is within the province of the judge to determine whether there are any facts in a case from which negligence could reasonably be inferred.

Appeal from common pleas circuit court of Hampton county; T. B. Fraser, Judge.

Action by Riley Cope against Hampton county to recover damages for Injuries to a horse from a defective bridge. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

A. M. Youmans and W. S. Tillingast for appellant

J. W. Moore, for respondent.

McGOWAN, J. This was an action brought by the plaintiff against the county of Hampton for damages on account of Injury to a mare, the property of the plaintiff, alleged to have been sustained by the breaking of a decayed plank in a bridge, while the plaintiff was "riding the mare along a causeway, known as Hickory Hill" causeway, a part of a public highway of Hampton county; from the effect of which Injury, it Is alleged, the mare subsequently died. The plaintiff himself testified that, when the injury was inflicted, "he was in a road cart, driving a very fine mare, " etc., October 13, 1891. There was proof tending to show that, about two weeks before the time of the alleged injury to the mare, the swamp had been very full; there was no passing at all at that place. The planks on the bridge had been entirely carried away, but had been replaced. The county commissioners had advertised for proposals to repair the bridges and the bulkheads of thiscauseway. A contract had been entered into for that purpose, and a notice that the bridges had been let out for repair, and that the county commissioners would not be responsible for any damages while crossing, had been, by direction of the commissioners, posted up on each side of the swamp. Under the contract above mentioned, this particular bridge was repaired.

When the plaintiff rested, a motion for a nonsuit was made, which was granted, the presiding judge holding that the allegata were not sustained by the probata, as it appeared that the plaintiff was in a vehicle, instead of "riding, " when the accident occurred; which variance would be important, if the law as it existed before the amendment of 1892 applied to the case, for that declared that the "person so injured could not recover, if his load exceeded the ordinary weight, " etc. But his honor held that the amendment of the law In 1892, making certain changes in the terms of section 1087 of the General Statutes, was the law of the case, for the reason that the action was not brought until after the passage of the act changing the law in important particulars; that the whole proceeding against the county is statutory, and not one of those which give a right from one individual to another, but fixes the terms upon which the government, or one of the governmental agencies, shall pay, and therefore it was absolutely and solely within the control of the legislature. And, so ruling, it was necessary for the plaintiff to bring himself within the terms of the act of 1892, and prove that "the alleged defect was occasioned by the neglect or mismanagement of the defendant county, " which was not done, and therefore he granted the order of nonsuit. Prom this order the plaintiff appeals upon the following exceptions: "(1) That it was error to rule that there was such a variance between the allegations of the complaint and the proof of that paragraph which alleged that while plaintiff was 'riding' his animal along the highway, etc., —the proof being that the plaintiff was 'riding In a road cart' along the said highway, and over the said bridge, at the time the animal was injured, —to warrant a dismissal of the plaintiff's complaint, etc. (2) That the question of 'weight, ' being one of fact, should have been submitted to the jury for their consideration. (3) That it was error in the judge to rule that this action was to be controlled by the act of 1892, the injury having occurred prior to the passage of the said amendment. (4) That It was error in the judge to rule that the county commissioners were not careless nor negligent in...