Gowan v. Greenville County

• Decision Date: 10 April 1940
• Docket Number: 15062.
• Citation: 8 S.E.2d 509,193 S.C. 327
• Parties: GOWAN v. GREENVILLE COUNTY.
• Court: South Carolina Supreme Court

8 S.E.2d 509

193 S.C. 327

GOWAN v. GREENVILLE COUNTY.

No. 15062.

Supreme Court of South Carolina

April 10, 1940

The order of Judge Lide follows:

The plaintiff filed suit against the defendant, Greenville County, the complaint alleging that he is an infant, under the age of fourteen years, and that on October 19, 1937, the County, by its agents and servants, was working on a bridge that spans a creek in the village of Greer Mill, and that the County negligently and carelessly, and without proper care and caution to prevent the scattering of rock, and without notice to plaintiff, caused to be exploded large quantities of dynamite for the purpose of placing abutments on the bridge, and that at the time shortly preceding the explosion of said dynamite, the plaintiff was playing near certain community garages, approximately 150 feet from the point where the County was working on said bridge, and that the plaintiff, upon observing the County workmen running away from where they had been working, ran in a direction opposite from the bridge, reaching the right-of-way of the P. & N. Railway on a pathway much traveled by pedestrians, and, while proceeding along the railway at a point 400 feet from the bridge, plaintiff heard the report from the explosion of dynamite which was set off by the agents of the County, the noise causing plaintiff to look in the direction of the bridge, and at this time a piece of rock being blown by the explosion struck plaintiff on the head fracturing his skull.

The complaint further alleges that plaintiff's injuries were caused by the negligence of the defendant in failing to give plaintiff notice of its purpose to blast the concrete with dynamite, and in failing to use proper care and caution to prevent the scattering of rock in a thickly settled neighborhood.

The defendant demurred to the complaint upon the ground that the facts stated do not constitute a cause of action, in that the cause of action therein does not fall within the provisions of the enabling Statute, Section 5856, Code of 1932.

Section 5856 of the Code provides: That when a person who shall receive bodily injury in his person through a defect or in the negligent repair of a highway, or bridge, may recover in an action against the County the amount of actual damage sustained by him, provided, the County shall not be liable unless such defect was occasioned by its neglect or mismanagement.

The question presented is whether or not, under the facts stated in the complaint, the plaintiff, who was not a traveler upon the highway, nor legitimately using the street or roadway and sustains injuries such as set forth in the complaint, can recover against the County for such injuries.

It seems to me that this case is controlled by that of Hiott v. Town of Walterboro, 127 S.C. 251, 119 S.E. 869. In that case the plaintiff was employed as a fireman in the power house of the Town of Walterboro. He was injured by the blowing out of a cylinder head of a steam engine installed in the power house and used to produce power to operate the electric light plant of the town. He brought action against the town for damages, alleging that the lighting plant was operated for making the streets safe for travelling, and that the plaintiff's injury was due to the negligence and mismanagement of the defendant, (1) in not providing him with a safe place to work, (2) in not properly installing the steam engine, (3) in continuing to operate said engine with knowledge of its unsafe condition, and (4) in furnishing an engine which was defective in the manner stated.

In the Hiott case the trial Court overruled a demurrer, which order was reversed by the Supreme Court. There the Court uses this language: "If while engaged in the use of the street *** for any legitimate purpose a person sustains injury, through 'a defect' in the street *** or 'by reason of defect or mismanagement of anything under control' of the city, he is entitled to maintain his action against a municipality under the statute."

The Court also uses the following language: "But the duty for a breach of which the statute, as heretofore construed and interpreted ***, gives a right of action, is the duty owed by the municipality to maintain its streets *** in a condition of reasonably safe repair. That duty, manifestly is owed to the users of the...