Fann v. State Highway Dept.

• Decision Date: 12 July 1932
• Docket Number: 13447.
• Citation: 165 S.E. 785,167 S.C. 84
• Parties: FANN v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

165 S.E. 785

167 S.C. 84

FANN v. STATE HIGHWAY DEPARTMENT.

No. 13447.

Supreme Court of South Carolina

July 12, 1932

On Rehearing October 10, 1932.

Appeal from Common Pleas Circuit Court of Union County; T. S. Sease Judge.

Suit by Mrs. Laura Fann against the State Highway Department of South Carolina. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

See also, 160 S.C. 156, 159 S.E. 617; 155 S.C. 219, 152 S.E. 429.

John M Daniel, Atty. Gen., Cordie Page and J. Ivey Humphrey, Asst. Attys. Gen., and Sawyer & Sawyer, of Union, for appellant.

Nicholls, Wyche & Russell and Ryan S. Moore, all of Spartanburg, and Barron, Barron & Walker, of Union, for respondent.

BLEASE C.J.

The plaintiff sued the state highway department for damages in the sum of $4,000, for personal injuries sustained by her in an automobile accident, alleged to have been brought about on account of defects in, and the negligent repair of, a state highway in Union county. The trial in the court of common pleas of that county, before his honor, Judge Sease, resulted in a verdict in favor of the plaintiff for $1,000. From the judgment entered thereon, the defendant has appealed to this court.

There are numerous exceptions, but the appellant's counsel concede that they raise only five questions. Without a discussion of the several exceptions separately, we shall pass upon the issues they make, but in an order other than that stated by the appellant.

The judge overruled a demurrer to the complaint, which was set forth in very general grounds. Little is said about the grounds in the argument. As to the positions taken, we quote practically all that was said by appellant's counsel in their brief: "*** The specifications and actions which are alleged to constitute negligence are things which are not required of this defendant by law. There can be no negligence unless there is a failure to do that which is required or the doing of that which is prohibited. The alleged negligence in the complaint are acts of omission and none of the acts are required by law. As to maintaining the highway at this place, the Legislature took over the highway in the act of 1924 and specifically directed this defendant to maintain it. It cannot be negligence to do that which the law definitely requires the defendant to do."

Without repeating all the matters set out in the complaint, we think a brief résumé of what was charged therein is sufficient to show that the demurrer, on the grounds mentioned, was properly overruled. As to the defects in, and the negligent repair of, the highway, the respondent charged that her injuries were occasioned because the main highway, where it crosses a railroad, turns abruptly to the right with a steep embankment to the left of the road and within a few feet of the railroad track; that at or near the abrupt turn, there was an old road, not intended for use, left when the main highway was improved and paved by the appellant, on which there is a gully within a few feet of the paved highway; that at the abrupt turn, there was no guard rail or other protection to prevent a traveler from going over the steep embankment; that there was no sign or warning of any kind whatsoever to warn of the presence of the abrupt turn; that at night (and the accident occurred at night) the lights of an automobile fail to disclose the abrupt turn, but show the presence of the old road, which road appears to be a continuation of the main highway after it crossed the railroad track; and that the driver of the car, unacquainted with the road, under the circumstances, although driving in a careful and entirely legal manner, because of the negligent condition of the highway, and the defects therein, drove into the old road, over the steep embankment and into the gully.

The law (Act No. 731 of 1924 (33 Stats., p. 1193), section 5926 et seq., 1932 Code), "The Pay-As-You-Go Act," required the state highway department to construct certain roads in the state highway system, which, under the law, were to be "ever after maintained as State Highways." Under that act, and subsequent legislation hereafter referred to, the liability and responsibility of the counties as to the maintaining all those highways were imposed upon the state highway department. The principles formerly recognized as to the duties, liabilities, and responsibilities of the counties as to maintaining and repairing of highways are clearly applicable to the state highway department as to state highways. The general rules of care and duty as to condition of highways seem to us to be well stated in excerpts, which we quote, from 29 C.J. at pages 680 and 681. There, it is said: "Counties and towns are not insurers of the safety of their highways, but must use, and are liable to any one injured by their failure to use, at least ordinary or reasonable diligence at all times, when practicable, to keep the road reasonably safe in view of the probable traffic; *** The duty to keep the highway in a reasonably safe condition means safe for general or ordinary travel or use for any lawful and proper purpose including use by automobiles and bicycles. *** In determining whether a highway is in a reasonable state of repair, its location and character and the extent of travel thereon are to be considered."

The strong claim of the appellant appears to be the fact that the complaint showed on its face that the accident occurred beyond the limits of the highway, out in the old road, and there was no defect, or negligent repair of, the highway alleged which was the proximate cause of the accident. We think appellant has misunderstood the allegations of the complaint. While it was declared therein that the automobile ran over the embankment into the gully beyond the limits of the highway, it was also alleged that the cause of that occurrence was due to defects in, and negligent repair of, the main highway itself.

It is true, as we understand appellant's contentions, that generally, "No liability exists for an injury occurring beyond the highway lines, although the line of the highway is not marked." 29 C.J. 683. The same authority, however, adds this: "But where the boundary line is not indicated by visible objects and a traveler while keeping within the general course of travel and close to the highway, and within what he believes to be the highway, is injured by a defect outside thereof, the municipality will be liable as if the defect existed within the highway, although such rule has not always been applied in the case of sidewalks."

The principles appearing to be particularly applicable to the allegations of the complaint in the case at bar are stated at 29 C.J. 688-690, as follows: "A municipality is liable for neglect to guard or place lights around obstructions and dangerous points in a highway, or to furnish suitable barriers wherever necessary for the safety of travelers, but not otherwise. The danger must be of an unusual character, such as a bridge, declivity, excavation, steep bank, or deep water. It is not the duty of the municipality to fence its road nor to provide barriers merely to prevent travelers from straying off the highway. The necessity of a barrier depends upon the circumstances of the particular case, and in determining such necessity the proximity of the danger with reference to the highway as traveled, the width and general character of the road, the amount and character of travel, and the presence of other objects serving as guards, may be considered, as may be the presence of some object or agent liable to frighten a horse. Where the condition of a highway is such as in itself to give notice that the way is not open to public travel, it is not necessary to place barriers there. The accident must, in order to render the municipality liable, have been such that the presence of the guard or signal would have prevented its occurrence. Ordinary care is the measure of duty required in guarding or warning of dangerous places; and a municipality is not bound to guard against rare and unforeseen accidents." (Italics added.)

The stated principles seem to be in harmony with our cases of Blakely v. Laurens County, 55 S.C. 422, 33 S.E. 503, and Morris v. Langley Mills et al., 121 S.C. 200, 113 S.E. 632, 634, 36 A. L. R. 302. In the Morris Case, where it was alleged that the county failed to provide adequate guard rails upon a causeway, Mr. Justice Marion, for this court, made the following statement: "The measure of the county's duty in that regard is ordinary care to provide against such dangers to the traveling public as may reasonably be anticipated, having due regard to the character of the travel, the incidental purposes for which the highway may be lawfully used, and the nature of the danger at the point in question."

The act of 1928 (35 Stats. 2055), contained in section 5887 of the 1932 Code, under the terms of which this suit was brought and tried, gives a right of action to "any person, firm or corporation who may suffer injury to his or her person or damage to his, her or its property by reason of a defect in any State highway, or by reason of the negligent repair of any State highway," under certain conditions.

There does not appear to be, as stated by the appellant, any statute expressly requiring barriers, guards, or warning signs to be located and maintained by the state highway department along state highways, but the general law of the state, long recognized by the decisions of this court, regardless of statutory enactment, requires authorities in charge of the highway, road, or street "to provide against such dangers to the traveling public as may reasonably be anticipated, having due regard to the character of the travel, the incidental purposes for...