Dunn v. Town Council of Barnwell

• Decision Date: 26 March 1895
• Citation: 21 S.E. 315,43 S.C. 398
• Parties: DUNN v. TOWN COUNCIL OF BARN WELL.
• Court: South Carolina Supreme Court

21 S.E. 315

43 S.C. 398

DUNN v. TOWN COUNCIL OF BARN WELL.

Supreme Court of South Carolina

March 26, 1895

Appeal from common pleas circuit court of Barnwell county; D. A Townsend, Judge.

Action by Uriah Dunn against the town council of Barnwell. There was a judgment for defendants, and plaintiff appeals. Affirmed.

James E. Davis, for appellant.

Bellinger Townsend & O'Bannon, for respondents.

McIVER C.J.

The sole question presented by this appeal is whether the circuit judge erred in sustaining a demurrer to the complaint, based upon the ground that the facts stated therein are not sufficient to constitute a cause of action. To determine this question it is necessary first to ascertain what are the facts stated in the complaint. Omitting the merely formal allegations, these facts are substantially stated: (1) That it is made the duty of defendants to keep the streets of the town "in good order, to cause to be removed therefrom all obstructions of whatever kind, so that persons traveling thereon might pass and repass with safety." (2) That a certain street in said town, known as "Main street," "was and is much used by the citizens thereof and the public generally, so much so that said duty of said defendants becomes a matter of public concern." (3) That on the 23d of September, 1893, the defendants "negligently allowed to be placed and maintained in said street, at a point where the same was very narrow, a dangerous obstruction, commonly called a 'booth,' or long table on which they allowed persons to display goods wares, and merchandise for sale, and by maintaining the same there the said street was rendered unsafe to persons riding or driving thereon." (4) That on the day above mentioned "the defendants negligently allowed the narrow pass in said street, caused as aforesaid, to be thronged with vehicles of various kinds, and to remain therein for an unreasonable time, and the plaintiff, who was at the time the owner of a valuable horse, of the value of one hundred and fifty dollars, and while the same was being ridden along said street, without any fault on the part of the plaintiff, and while attempting to ride between said throng and booth, or table, as aforesaid, which was the only apparent safe way along said street at said time, the said horse became greatly frightened at the flaming goods displayed at and upon said table, and ran against the point of a buggy shaft, which was congregated in said street as aforesaid, seriously injuring said horse, and causing its death, to the damage of the plaintiff one hundred and fifty dollars."

Inasmuch as it is the settled law of this state that a municipal corporation, charged by its charter with the duty of keeping in proper repair the streets or public highways within the corporate limits, is not liable to a civil action for damages, at the suit of an individual who has sustained an injury, either in person or property, by reason of a failure on the part of the corporation to perform such duty, in the absence of a statute imposing such liability, we must next inquire whether we have any st...