Furr v. City of Rock Hill, 17559

• Decision Date: 21 July 1959
• Docket Number: No. 17559,17559
• Citation: 109 S.E.2d 697,235 S.C. 44
• Parties: Mrs. Leo FURR, Respondent, v. CITY OF ROCK HILL, a Municipal Corporation, Appellant.
• Court: South Carolina Supreme Court

Page 697

109 S.E.2d 697

235 S.C. 44

Mrs. Leo FURR, Respondent, v. CITY OF ROCK HILL, a Municipal Corporation, Appellant.

No. 17559.

Supreme Court of South Carolina.

July 21, 1959.

Spencer & Spencer, Rock Hill, for appellant.

Charles B. Ridley, Rock Hill, for respondent.

MOSS, Justice.

This action was instituted by Mrs. Leo Furr, the respondent herein, against the City of Rock Hill, the appellant herein, to recover damages for personal injuries alleged to have been sustained by her as the result of negligence on the part of the appellant in the maintenance of one of its streets. The answer of the City was a denial of the material allegations of the complaint. The appellant also asserts that the place where the respondent was injured was not a street or public way, and therefore, it incurred no liability for said injuries.

The trial of this case, in the Circuit Court, resulted in a verdict for the respondent. At proper stages of the trial the appellant moved for a nonsuit and for the direction of a verdict in its favor. After the rendition of a verdict in favor of the respondent, the appellant made a motion for judgment non obstante veredicto or, in the alternative, for a new trial. All of these motions were denied and this appeal followed.

The exceptions charge the Presiding Judge with error in failing to grant the several motions made by the appellant. We think that we can dispose of this appeal by considering only the exception which asserts the evidence failed to establish that the injuries to the respondent occurred in a street or public way maintained by the appellant.

It is the well settled rule in this jurisdiction that a municipality is a subdivision of the sovereignty of the State and enjoys the immunity of the latter from a suit for tort, except as provided by statute. Section 47-70, of the 1952 Code, provides:

'Any person who shall receive bodily injury or damages in his person or property through a defect in any street, causeway, bridge or public way or by reason of a defect or mismanagement of anything under control of the corporation within the limits of any city or town may recover in an action against such city or town the amount of actual damages sustained by him by reason thereof * * *.'

In the case of Parish v. Town of Yorkville, 96 S.C. 24, 79 S.E. 635, 636, L.R.A.1915A, 282, it was said:

'It has been settled by a long line of decisions in this court that an action for damages for tort will not lie against a municipal corporation, unless the corporation is made liable by statute, because such corporation is merely an agent of the state for governmental purposes.'

Liability of a municipality, under the above statute, is predicated upon its duty to maintain its streets and other public ways in reasonable repair for the purpose of travel thereon. The words 'anything under control of the corporation' do not enlarge the field of liability beyond that purpose; they relate to instrumentalities used in the maintenance and repair of streets for the purposes of travel. Reeves v. City of Easley, 167 S.C. 231, 166 S.E. 120; Abernathy v. City of Columbia, 213 S.C. 68, 48 S.E.2d 585; Hicks v. City of Columbia, 225 S.C. 553, 83 S.E.2d 199; Floyd v. Town of Lake City, 231 S.C. 516, 99 S.E.2d 181 and Collins v. City of Greenville, S. C., 233 S.C. 506, 105 S.E.2d 704, 710.

In the case of Collins v. City of Greenville, S. C., supra, we quoted with approval from 25 Am.Jur., Highways, Section 427, at page 717, the following:

'While the rule has been frequently stated that the duty imposed is to keep the way reasonably safe for travelers, and that the public authority or individual charged with responsibility is not liable for damages occasioned by defects in highways to persons who are not travelers thereon at the time the injury occurs, the terms 'travel' and 'traveler' are usually construed in their broad and general sense where used in this connection, rather than in a narrow and restricted one, and the duty and consequent liability is extended so as to include all those who rightfully use the highways viatically, and who have occasion to pass over them for the purpose of business, convenience, or pleasure. * * *'

The testimony shows that the City of Rick Hill, the appellant herein, owns and maintains a municipal stadium fronting on the eastern side of South York Avenue, and lying between the southern side of West White Street and the northern side of Stadium Street. This stadium is used for the playing of athletic games, and for other public outdoor meetings. On the morning of April 21, 1957, the municipal stadium was being used by the Rock Hill Ministerial Association for Easter Sunrise Services. At the time in question the appellant was engaged in extending its concrete football stadium for a distance of 150 feet to the south, to eliminate a conflict between the baseball and football fields. In order to accomplish the extension of the stadium, it was necessary to place a high dirt fill to support the proposed new concrete stands. To accomplish the filling in with dirt of the area for the extension, it was necessary to remove the fence running along the north edge of Stadium Street, so that trucks hauling dirt could pass back and forth between Stadium Street and the fill area. At the time of the holding of the Easter Services, the dirt fill was substantially completed, but the construction of the extended concrete stands had not been commenced.

The respondent desiring to attend the Easter Services went to the municipal stadium and entered from York Avenue by climbing the stairs at the rear to the top of the stands, and, finding no suitable seat at the top of the stands, she returned to York Avenue rather than descend the steps through the stands. The respondent then circled the stands to the south and proposed to enter the bottom of the stands from the Stadium Street end. In crossing the construction area near the northern edge of Stadium Street, the respondent fell and was injured, allegedly as a result of a defect in the surface upon which she was walking, which she contends was negligently permitted without proper warning by the appellant. This brings us to the real question in the case of whether the respondent was injured within or beyond the bounds of Stadium Street. It is the contention of the appellant that the injuries to the respondent occurred beyond the limits of any street or public way, and within the stadium area. The respondent contends that without fault on her part she was injured by an alleged defect in a negligently unmarked street, or public way, where construction work had been in progress by the appellant.

Stadium Street was unpaved at the time of the injury to the respondent. There was a ditch about one foot deep between the traveled portion of Stadium Street and the stadium area. Beyond the ditch was a bank of dirt. No repair or construction work was being done on Stadium Street. We quote from the testimony of the respondent as to where she was when she fell.

'Q. All right, now you weren't walking out in Stadium Street, were you? A. Not in the road, I wasn't.

'Q. You were towards the stadium and beyond the ditch along the edge of Stadium St., were you not? A. Yes, sir.'

She further described the place where she was walking as follows:

'Because there was no mud there, and it wasn't wet in no way, shape, or form, but that was just...