Livingston v. South Carolina State Highway Dept.

• Decision Date: 30 December 1935
• Docket Number: 14193.
• Parties: LIVINGSTON v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

183 S.E. 8

178 S.C. 323

LIVINGSTON v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT.

No. 14193.

Supreme Court of South Carolina

December 30, 1935

Appeal from Common Pleas Circuit Court of Orangeburg County; B. H Moss, Judge.

Action by M. C. Livingston against the South Carolina State Highway Department. Judgment for plaintiff, and defendant appeals.

Affirmed.

John M Daniel, Atty. Gen., and J. Ivey Humphrey and M. J. Hough Asst. Attys. Gen., for appellant.

Thomas H. Peeples, of Columbia, Tenn., J. Coker Anderson, of Columbia, S. C., and M. E. Zeigler, of Orangeburg, for respondent.

FISHBURNE Justice.

The plaintiff brought this action in the county court for Orangeburg county, against the state highway department for damages alleged to have been sustained by him on August 14, 1933, under the allegation that while crossing state highway No. 3, at a point north of Edisto river, he stepped into a hole on the highway containing broken glass, and as a result his right foot, ankle, and leg were permanently injured.

The defendant's answer was a general denial.

The cause was tried before the county judge and a jury, and resulted in a verdict for the plaintiff in the sum of $2,000. In due course motions were made for a nonsuit, for a directed verdict, and for a new trial, and were refused.

The testimony tends to show that the dwelling house of the plaintiff is within 150 feet of the highway, on its east side, and that the plaintiff also owns a tract of land on the west side of the highway opposite his residence.

In 1931, preparatory to paving this highway, it was straightened and relocated at a point opposite the plaintiff's dwelling. The improved highway, after it had been paved, was 72 feet wide, and paved for a width of 18 feet in its center. Before the paving was laid there was an old guard rail, consisting of upright posts six inches by six inches, with boards nailed upon them, which was located on the west side of the old road; when the paving was completed the old guard rail was removed and placed within two or three feet of the west side of the pavement, opposite plaintiff's home, in the same relative position it was in before. The shoulder or unpaved portion of the highway, where the old guard rail had been, was graded and "dressed up," and its inequalities made smooth. The posts used in the old guard rail were placed in holes four feet deep. There is some disagreement in the testimony as to whether or not these holes, after the removal of the old guard rail, were filled up by the defendant and its employees. The plaintiff testifies that they were not filled. Witnesses for the defendant testify that the holes were filled, and that some of them were tamped. This occurred in 1931, at which time the road was taken over by the state highway department and improved. In January of that year the defendant took up his residence at some distance north of the North Edisto river, and opposite the northern end of the guard rail, and was living there in August, 1933, when he sustained his alleged injury.

The testimony tends to show further that at this point an old road or path debouched from the paved highway into the adjoining swamp, and extended for about a half mile to the creek, and the plaintiff used this old road in going back and forth from his home to his property on the west side of the road, where he fished and had a vegetable garden. On the afternoon of August 14, 1933, at about 7:30 o'clock, plaintiff crossed the highway opposite his house for the purpose of getting fuel. On the way back with a 10-foot stick of wood on his shoulder, when recrossing the highway, he stepped into a hole, variously estimated as being from one to three feet distant from the old road or path, and was injured. This hole was about 16 feet from the western edge of the pavement, within the right of way, and, according to the testimony, it was completely covered by Bermuda grass which had been planted there by the defendant. The testimony tends to show that this was a hole from which one of the old guard posts had been removed and was 10 or 12 inches in diameter, and about 2 1/2 feet deep. Plaintiff testified that he was not living at home when the old guard rail was removed, and knew nothing about the presence of the hole. The testimony shows that within the mouth of the hole, but hidden and supported by the grass, there was a broken half-gallon glass jar. When the plaintiff stepped into the hole, he sustained severe cuts from this glass.

It appears that there were 39 holes, in all, from which the guard rail posts were removed. The testimony of the defendant tends to show that there were 99 holes in all. After the accident the maintenance engineer of the defendant was shown the hole in question by the plaintiff. He testified that it was then 2 1/2 feet deep, but that he saw no glass; and that within a few days he had this and other holes filled in. He also stated that he knew from experience that in the course of time after a hole had been filled in with fresh dirt, not tamped, it would again sink.

The evidence in the case tends to establish these salient facts: (a) State highway No. 3 is a public highway, constructed and maintained by the defendant, and bisecting plaintiff's lands; (b) that an old road or path, used by pedestrians, sometimes by wagons, and possibly by automobiles, debouched at an acute angle from this highway directly opposite plaintiff's dwelling, leading into the swamp, and frequented by persons going fishing, and otherwise; (c) that a hole was left in the highway by the defendant, its agents and servants, within one to three feet of this old wagon road or path, which hole was 16 feet from the west side of the paving, and constituted one of a line of thirty-nine holes marking the course of the old guard rail; (d) that the defendant "dressed up" and scraped the surface of the highway from the west side of the paving, up to the line of holes where the old guard rail had been; (e) that the hole, at the time of the accident, was hidden from view by a covering of Bermuda grass, and was about 2 1/2 feet deep, and 10 or 12 inches in diameter; (f) that the plaintiff stepped into the hole in close proximity to the old wagon road; and this hole, after the accident, was found to be about 2 1/2 feet deep, as shown by the testimony of defendant's maintenance engineer; (g) that it was filled in by the defendant after the accident; (h) that the plaintiff knew nothing of the presence of the hole.

The defendant is appealing to this court from the judgment entered up, and the first question presented for our consideration is this: Is the state highway department liable for damages to persons who are injured while entering upon its highways from adjoining lands, where such injury is caused by stepping into a hole on the right of way near a private path, but 16 feet from the paved part of the road maintained and used for travel?

The action was brought under section 5887 of the Code 1932, which provides that the state highway department shall be liable in damages to any person who may suffer injury to his person or property by reason of a defect in any state highway or by reason of the negligent repair of any state highway, it being provided therein that the person bringing the suit against the state highway department under this section must allege and prove...