Mahon v. Spartanburg County

• Decision Date: 07 December 1944
• Docket Number: 15695.
• Citation: 32 S.E.2d 368,205 S.C. 441
• Parties: MAHON v. SPARTANBURG COUNTY.
• Court: South Carolina Supreme Court

32 S.E.2d 368

205 S.C. 441

MAHON v. SPARTANBURG COUNTY.

No. 15695.

Supreme Court of South Carolina

December 7, 1944

Blackwell Sullivan & Wilson, of Laurens, and C. Yates Brown, of Spartanburg, for appellant.

H K. Osborne, and Thos. B. Butler, both of Spartanburg, for respondent.

BAKER Chief Justice.

This is an action for the recovery of damages on account of the death of appellant's intestate, George W. Mahon, who was drowned on February 12, 1943, when he, with a truck which he was driving, and a span of a bridge over which the truck was being driven, at Van Patton Shoals, went into the Enoree River on the Spartanburg side of the said river.

The action was brought under the statute, the complaint alleging that the death of the deceased was due to the negligence of the respondent in the maintenance of the bridge in the following particulars:

"(a) In that the Defendant, its agents and servants permitted the support of the end of the bridge above described on the North side of the Spartanburg end to be undermined by the water of the said Enoree River in such a way that the said bridge did not support a normal and customary load carried by the Plaintiff's intestate and others traveling said road;

(b) In that the said Defendant, its agents and servants, did not post any notice, sign or other warnings to the Plaintiff's intestate and the public in general of the defective condition of said bridge;

(c) In that the Defendant, its agents and servants, by its maintenance of said bridge in its defective condition, invited the Plaintiff's intestate and the public generally to use said bridge for the purpose of crossing said River, without properly inspecting and maintaining same, and as a direct and proximate result of this and the other acts of negligence as outlined herein, the Plaintiff's intestate was injured, and from said injuries died;

(d) In that the Defendant did not have said bridge properly tested by engineers, nor put up a sign or notice of warning to the public generally as to the capacity of said defective bridge and as to the loads which it would support."

And during the trial of the case, appellant was permitted to amend her complaint by alleging an additional specification of negligence reading:

" In that the defendant failed to securely anchor and/or tie together the spans of the bridge on the middle pier to the span on the Laurens County side of said river.

In that the defendant failed to securely anchor the spans of said bridge to the pier on west end of said span by placing a spiker of sufficient strength to secure the same."

The complaint of course alleged that appellant's intestate was free of negligence or contributory negligence.

The answer of the respondent, for a first defense, admitted certain formal matters, and that George W. Mahon (appellant's intestate) was drowned on the date above mentioned in the Enoree River, at the site of its bridge, but denied any liability therefor, and denied all allegations of the complaint not specifically admitted or explained; and for a second defense, pleaded the negligence and contributory negligence of the appellant's intestate in various particulars not necessary to here set out.

At the close of the testimony for the appellant, a motion was made by the respondent for an involuntary nonsuit on the following grounds:

"1. There has been no evidence of any actionable negligence on the part of the County operating as the proximate cause of the accident out of which Mr. Mahon's death arose.

2. That plaintiff has not affirmatively proved, as required to do under the Statute, that Mr. Mahon did not in any way bring about his injury or death by his own actions or negligence, contributing thereto.

3. It is provided that if it be claimed that a defect existed before the injury, that no damage can be recovered if the load exceeded the ordinary weight."

The motion was granted, and the appeal is from the order of the trial Judge granting the nonsuit (not from an order directing a verdict as stated in the exception, but which did not mislead the respondent).

It therefore becomes necessary for us to discuss the testimony on behalf of the appellant, and in so doing we will keep in mind the well established law that in passing on a motion for an involuntary nonsuit, it is not the Court's function to weigh the testimony, but to determine if there is any relevant and competent testimony reasonably tending to establish the plaintiff's cause of action; and that the testimony must be viewed most favorably to the plaintiff.

Appellant's intestate, George W. Mahon, was an experienced truck driver having driven trucks for twenty years or more. At the time of his tragic death, he was employed by W. A. Patton of Fountain Inn, S. C., who dealt principally in cotton and fertilizer, and had been working for Mr. Patton for approximately two and one-half years. On the morning of the day of his death (February 12, 1943) appellant's intestate carried thirty bales of cotton to Cannon Mills, N. C., and on his return trip stopped in or went to Roebuck and secured ten tons of fertilizer which he knew was to be delivered to W. P. Cook at Crescent, about five miles below Woodruff. The return load (fertilizer) was being hauled without specific instructions so to do, but in the employer's interest. Upon reaching the place of business of Mr. Cook about 8 o'clock P. M., there was no one there at that time to assist in unloading the fertilizer, so Mr. Mahon drove off, but came back by Mr. Cook's place of business around 9 o'clock, when it was expected that there would be some help there to unload the fertilizer. However, Mr. Cook had then closed his place of business in order to go to his home and listen to a special radio program, and Mr. Mahon then proceeded towards Fountain Inn with the load, choosing the Van Patton's Bridge Road route, which had its advantages and disadvantages just as the other, and...