Irvine v. Greenwood

• Decision Date: 02 October 1911
• Parties: IRVINE v. TOWN OP GREENWOOD et al.
• Court: South Carolina Supreme Court

72 S.E. 228

89 S.C. 511

IRVINE

v.TOWN OP GREENWOOD et al.

Supreme Court of South Carolina.

Oct. 2, 1911.

1. Municipal Corporations (§ 724^*)—Torts —Grounds of Liability.

A city is not liable for its torts unless made so by statute, irrespective of the nature of the matter in connection with which the injury occurs, all its functions being considered of a governmental and public character, though carried on for profit.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1545, 1568; Dec. Dig. § 724.*]

2. Municipal Corporations (§ 733*)—Torts —Liability—Nature of Function—Street Lighting.

Even were the distinction recognized between governmental functions and others, the lighting of streets is a governmental function, and no liability is imposed from that standpoint on the city for shock by contact with a wire hanging from a street arc light pole, though the city light plant also supplied private parties.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1547-1549; Dec. Dig. § 733.*]

3. Municipal Corporations (§ 766*)—Torts —Defective Streets.

Act 1892 (21 St. at Large, p. 91; Civ. Code 1902, § 2023), permitting one injured through a defect in a street to recover damages therefor, requires the city to keep the street in such repair that it is reasonably safe for travel, so that it would be bound to keep an electric lighting pole placed in the street, together with the wires attached thereto, in a safe condition.

[Ed. Note.—For other cases, see MunicipaF Corporations, Cent. Dig. U 1021, 1622; Dec. Dig. § 766.*]

4. Municipal Corporations (§ 821*) — Streets—Use by Children.

The court cannot say, as a matter of law, that the playing of children in the street is an illegitimate use thereof, which the city is not required to anticipate in maintaining the street in a safe condition; the question being ordinarily for the jury.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. 5 821.*]

5. Municipal Corporations (§ 821*) — Streets—Injuries.

It cannot be said, as a matter of law, that a 17 year old boy is so old as to exclude him from the benefit of the rule requiring cities to keep streets safe for children playing therein.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 821.*]

6. Municipal Corporations (§ 821*)—Torts —Injuries in Streets—Jury Question-Contributory Negligence.

Whether the danger to a child playing in the street, in coming in contact with a wire hanging from an electric lighting pole, was so apparent as to make it guilty of contributory negligence held a question for the jury, in an action against the city for resulting injuries.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 821.*]

Appeal from Common Pleas Circuit Court of Greenwood County; S. W. G. Shipp, Judge.

"To be officially reported."

Action by H. E. Irvine, as administrator of the estate of W. Claude Irvine, deceased, against the Town of Greenwood and others, Commissioners of Public Works of said town. From a judgment for defendants, plaintiff appeals. Reversed and remanded for new trial.

Tillman & Watson and Cothran, Dean & Cothran, for appellant.

E. L. Richardson and Grier & Park, for respondents.

WOODS, J. The town of Greenwood owns and operates a municipal lighting plant, for the purpose of lighting its streets and furnishing electric current to its citizens for domestic purposes. This plant is controlled and managed by a board of public works, composed of three commissioners, elected by the qualified electors of the town, who are vested, by section 2010 of the Civil Code (volume 1), with full power and authority to build, maintain, operate, and manage the plant. This action was brought against the town of Greenwood and the board of public works by H. E. Irvine, as administrator, to recover damages for thealleged unlawful and wrongful killing of his son, Claude Irvine.

The facts, as alleged in the complaint, and established by the plaintiff's evidence, are these: On August 23, 1908, the deceased, a boy of 17 years of age, was engaged with two companions in playing a game known as "peg, " on Jordan street, in the town of Greenwood, not far from its intersection with Parker street. On the side of Jordan street, a few feet from the point of intersection, and on the edge of the drain between the sidewalk and the street, was an electric light pole, from which an arc light was suspended. A metallic chain, used for the purpose of raising and lowering the light, hung down the side of the pole next to the street, and formed a loop about five or six feet above the ground. As Irvine, in the course of the game, was running from the street to the sidewalk near this post, he slipped on the edge of the drain, caught hold of the loop in an effort to save himself from falling, and was killed by a strong electric current transmitted to his body through the chain.

The complaint alleged, in substance, three acts of negligence and wantonness on the part of the defendants: First, that they had allowed the chain to come in contact with the wires overhead, and to hang a short distance above the street, so that any traveler might touch it; second, that the defendants had removed, or allowed to be removed, the insulation from the wires at the point of contact with the chain; third, that they had failed to equip the light with proper safety appliances. The defendants demurred to the complaint, on the ground that it failed to state facts sufficient to constitute a cause of action, in that no action would lie against a municipality or its agent for negligence in carrying on its corporate functions, unless such action were authorized by statute, and that no liability had been created by statute under the facts stated.

The circuit court sustained the demurrer as to the defendant the board of public works, but overruled it as to the defendant the town of Greenwood, holding that the acts of negligence specified in the complaint might be considered as a defect in the street, and that, under section 2023 of the Civil Code (volume 1), an action would lie against a municipality for injuries resulting therefrom. At the close of the plaintiff's testimony, the defendant moved for a nonsuit, which was granted by the court, on the ground that the plaintiff had failed to prove that the deceased had not been guilty of contributory negligence when he received the injury. From this order of nonsuit, the plaintiff appeals.

Whenever the question has arisen, it has been held in this state that a municipality is not liable in damages for a tort committed by any of its officers or agents, unless made so by statute. White v. City Council of Charleston, 2 Hill, 572; Coleman v. Chester, 14 S. C. 290; Black v. City of Columbia, 19 S. C. 412, 45 Am. Rep. 785; Gibbes v. Beaufort, 20 S. C. 213; Parks v. Greenville, 44 S. C. 168, 21 S. E. 540; Matheney v. Aiken, 68 S. C. 163, 47 S. E. 56. Counsel for plaintiff, while acknowledging the authority of these cases, insist that they should be limited in application to such torts as are committed by a municipality in the exercise of its public and governmental functions, and should be held to have no application to torts committed by a municipality in the conduct of a business authorized by law for the advantage of the municipality,

but distinct from the public or governmental

functions of the corporation. The distinc-

tion contended for has the sanction of very

high authority, including the Supreme Court of the United States. South Carolina v.

United States, 199 U. S. 437, 26 Sup. Ct 110, 50 L. Ed. 261; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; 1 Dillon on Mun. Corp. § 66. The numerous other authorities on the subject are collated in 28 Cyc. 1257,

1258, 20 Am. & Eng. Ency. 1191, 1 L. R.

A. (N. S.) 664, 30 Am. St. Rep. 376.

Notwithstanding this weight of authority, we think there are cogent reasons for rejecting the distinction. The question was not decided in Mauldin v. Greenville, 33 S. C.

| 1, 11 S. E. 434, 8 L. R. A. 291. There the court held that, in the absence of express bestowal by the Legislature on the city of Greenville of the power to construct and maintain a plant to furnish electric lights in private residences and business houses, such a power was not implied in the general grant

of authority "to make and establish all such rules, by-laws, and ordinances respecting the roads, streets, market and police department of said city, and the government thereof, as shall appear to them necessary

and requisite for the security, welfare and convenience of said city, for preserving

j health, life, and property therein, and securing the peace and good government of the same." Here the question is whether the exercise of a particular power expressly conferred on a municipal corporation—a governmental agency—by the General Assembly shall be held to be a governmental function, or on the same legal footing as an ordinary

business enterprise of a private corporation. The distinction was referred to in Childs v. City of Columbia, 87 S. C. 566, 70 S. E. 290, but no opinion as to its soundness was expressed; the case having been decided on other grounds.

In Hopkins v. Clemson College, 77 S. C. 12, 57 S. E. 551, the question was whether Clemson College, a corporation created for a public purpose, was liable for overflowing plaintiff's land in constructing a dike to protect the crops on the college lands from the floods in the Seneca river. This court held that the case fell within the rule laid down in Gibbes v. Beaufort, 20 S. C. 213, Dunn v. Barnwell, 43 S. C. 398, 21 S. E. 315, 49 Am. St. Rep. 843, and the other cases decided in this state, cited above, and that therefore the plaintiff could not recover. On appeal the Supreme Court of the United States reversed the judgment of this court, holding that the flooding of plaintiff's land was the taking of private property without due process of law, and that the taking was by the corporation itself, for...