Hiott v. Town of Walterboro

• Decision Date: 10 December 1923
• Docket Number: 11367.
• Citation: 119 S.E. 869,127 S.C. 251
• Parties: HIOTT v. TOWN OF WALTERBORO.
• Court: South Carolina Supreme Court

119 S.E. 869

127 S.C. 251

HIOTT v. TOWN OF WALTERBORO.

No. 11367.

Supreme Court of South Carolina

December 10, 1923

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

Action by J. F. Hiott against the Town of Walterboro. From an order overruling a demurrer to the complaint, defendant appeals. Reversed.

Howell & Fishburne, of Walterboro, for appellant.

Padgett & Moorer, of Walterboro, for respondent.

MARION J.

The plaintiff was employed as a fireman or assistant engineer in the power house of the town of Walterboro. He was injured by the blowing out of the cylinder head of a steam engine installed in the power house and used to produce power with which to operate the electric light plant and waterworks system of the town. He brought action against the town for damages, alleging, among other things, that the lighting plant was operated "for lighting and making safe its streets for traveling"; that the power house was located within the corporate limits; and that his personal 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 said steam engine (3) in continuing to operate said defective engine with knowledge of its unsafe condition, and (4) in furnishing maintaining, and operating an engine which was defective in the manner stated. The defendant demurred to the complaint upon the ground that the cause of action stated did not fall within the provisions of the enabling statute, section 3053, Civ. Code 1912, now section 4478, vol. 3, Code 1922. From an order of the circuit court overruling the demurrer, the defendant appeals.

We think the demurrer should have been sustained. The enabling statute, above referred to, conferring a right of action for actual damages upon one "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 defect or mismanagement of anything under control of the corporation within the limits of any town or city," has been construed by this court in numerous decisions to limit the liability of the municipality to misfeasance or nonfeasance connected with the keeping of any street causeway, bridge, or public way in proper repair. Dunn v Barnwell, 43 S.C. 398, 21 S.E. 315, 49 Am. St. Rep. 843; Hutchison v. Summerville, 66 S.C. 448, 45 S.E. 8; Bryant v. Orangeburg, 70 S.C. 142, 49 S.E. 229. If while engaged in the use of the street, etc., for any legitimate purpose a person sustains injury, through "a defect" in the street, etc., or "by reason of defect or mismanagement of anything under control" of the city, he is entitled to maintain his action against the municipality under the statute. Irvine v. Greenwood, 89 S.C. 511, 72 S.E. 228, 36 L. R. A. (N. S.) 363; Stone v. City of Florence, 94 S.C. 375, 78 S.E. 23; Creps v. City of Columbia, 104 S.C. 371, 89 S.E. 316; Burnett v. City of Greenville, 106 S.C. 255, 91 S.E. 203, Ann. Cas. 1918C, 363; Sexton v. City of Rock Hill, 107 S.C. 505, 93 S.E. 180; Triplett v. Columbia, 111 S.C. 7, 96 S.E. 675, 1 A. L. R. 349. An employee of the municipality, using the street for the legitimate purpose of repairing the same, injured by a defect in or "mismanagement of anything," such as machinery, etc., under the control of the municipal corporation, is within the terms of the statute. Barksdale v. City of Laurens, 58 S.C. 413, 36 S.E. 661 (steam roller); Strait v. Rock Hill, 104 S.C. 116, 88 S.E. 469 (rock crusher). But the duty for a breach of which the statute, as heretofore construed and interpreted (see cases above cited), gives a right of action, is the duty owed by the municipality to maintain its streets, etc., in a condition of reasonably safe repair. That duty, manifestly, is owed to the users of the streets. May one who at the time of his injury is not upon the street and is making no use of the streets claim the benefits of the statute upon the theory that the work in which he was engaged was connected with or...