Haithcock v. City of Columbia

• Decision Date: 11 October 1920
• Docket Number: 10501.
• Citation: 104 S.E. 335,115 S.C. 29
• Parties: HAITHCOCK v. CITY OF COLUMBIA.
• Court: South Carolina Supreme Court

104 S.E. 335

115 S.C. 29

HAITHCOCK v. CITY OF COLUMBIA.

No. 10501.

Supreme Court of South Carolina

October 11, 1920

Appeal from Common Pleas Circuit Court of Richland County; Ernest Moore, Judge.

Action by W. T. Haithcock, Jr., etc., against the City of Columbia and another. From an order of nonsuit in favor of both defendants, plaintiff appeals; the unnamed defendant not being included in the notice. Reversed.

E. J Best and E. W. Mullins, both of Columbia, for appellant.

C. S Monteith, of Columbia, for respondent.

GARY C.J.

This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant. The appeal is from an order of nonsuit in favor of both defendants, but the defendant Hardaway Contracting Company was not included in the notice of appeal.

The complaint alleges:

"That on or about the 24th day of February, 1919, and long prior thereto, the defendant city of Columbia maintained a public playground at Erwin Park, and public ways and streets into and about said park, in close proximity to its water plant, for the purpose of furnishing recreation and diversion for the children of Columbia; and said children had used said premises and park, and public ways and streets therein, and the property contiguous thereto, for a long time prior to February 23, 1919, with the knowledge, acquiescence and approval of the city of Columbia."

The park is more particularly described by one of plaintiff's witnesses, who thus testified:

"Erwin Park is a public park for the city of Columbia and the city maintains roads and streets around through the park, and also grassplots therein; and the public use said streets, sidewalks, and public driveways without objection. The city has a pumping station--a one-story building containing two steam pumps--used in the operation of the city's waterworks plant. There is a sidewalk or street passing parallel with and along the side of these buildings. Some time in December it became necessary for the city to dig an excavation for the purpose of placing a pipe in the waterworks building at the park. In carrying on this work the city used dynamite and dynamite caps for blasting. These dynamite caps were nearly an inch long, and about the size of a thirtypenny nail."

The plaintiff thus testified:

"I will be 12 years old the 18th of January next. My brother and I went down to Erwin Park. I saw some of those dynamite caps down there, and I went over and picked up one. The caps were upon a window sill, about 25 or 30 of them. The window sill was about 2 feet high. We stopped in the park to play. The window where I found the caps was on the waterworks building. At the side of the building, and a few feet away, there is a walk. Between there and the building there was no grass growing at this time. I think grass grows there in the summer. I had never seen one before. I took one cap and went up to a rock seat on the hill, about 30 feet away. After I got up there, I hit the cap with a rock. It exploded and blew off my thumb and two fingers."

Cross-examination:

"I found most of the dynamite caps in a paper sack, on the window ledge, but the paper sack was torn, and three of the caps were lying on the ground. I went off the sidewalk and up the bank to the window sill, to get the caps."

At the close of the plaintiff's testimony, the defendants made a motion for a nonsuit, on the following grounds:

"There is absolutely no evidence to show that the walkways or public ways were not perfectly safe, and the proof of the plaintiff shows that he went some 17 or 18 feet away from a sidewalk, and picked up a dynamite cap on the window sill of the building."

His honor the presiding judge assigned the following reasons, in granting the nonsuit:

"I do not think, under the showing here, that the whole park could be held as a public way, because that, it seems to me, would be broadening the statute very much, but certainly a public way would have to be limited to such part, it seems to me, as was maintained by the city for the purpose of visiting the park. And when you get to 17 or 18 feet away, I do not think it comes within the Stone Case, or any of these other cases that have been cited. If the place was 17 or 18 feet away, it seems to me that is sufficient space to show that it doesn't come within a defect in the street or public way, unless you hold the whole park to be a public way. There is nothing to show there was anything nearer to the place where this occurred, maintained by the city as a public way, than this walkway 17 or 18 feet away."

The plaintiff appealed upon exceptions which will be reported.

Before proceeding to consider the questions at issue, it may be well to show the policy of the...