McFail v. Barnwell County

• Decision Date: 11 April 1900
• Citation: 35 S.E. 562,57 S.C. 294
• Parties: McFAIL v. BARNWELL COUNTY.
• Court: South Carolina Supreme Court

35 S.E. 562

57 S.C. 294

McFAIL v. BARNWELL COUNTY.

Supreme Court of South Carolina

April 11, 1900

Appeal from common pleas circuit court of Bamberg county; W. C Benet, Judge.

Action by William S. McFail against Barn well county. Judgment for plaintiff. Defendant appeals. Reversed.

The charge of the court below and the exceptions thereto are as follows:

Charge.

"Mr. Foreman and Gentlemen of the Jury: I trust you have a reasonably clear recollection of the testimony in this case and of the arguments of counsel on both sides urging their respective views of facts and law. I shall, as in duty bound endeavor to give you such instructions in the law as will aid you in arriving at a just conclusion and finding a true verdict. This action, brought by Wm. S. McFail against Barnwell county, is an action for damages in which he alleges in his complaint that while he was traveling on the highway in said county, on the highway leading across Fitz's bridge on the Edisto river, unaware of any defect in one of said bridges, that there was a defect in that bridge,--a defect occasioned by the negligence and mismanagement of the county of Barnwell,--consisting in that the stringers and underworks were rotten and unsafe, and which the county ought to keep in safe and passable condition, which it neglected to do; that when he attempted to cross that bridge with one accompanied by one John Neal, the bridge gave way, and by reason of the negligent repair of said bridge, and the failure of the county to keep in repair, and by the falling of said bridge, he suffered great bodily injury, and he is informed and believes it is of a permanent nature; and also received injury to his property, namely, horses, buggy, and harness, and alleges all these were caused by the defect in the bridge, and the failure of the county to keep the bridge in safe, passable condition; and also alleges the injury and damage was not caused by any act of his on his part; that he didn't contribute in any way to the injury. Then asks for two thousand dollars damages for personal injuries, and two hundred dollars damages to property; in all, damages amounting to twenty-two hundred dollars. Such, in brief, is the complaint of the plaintiff, and Barnwell county answers. Sets up several legal defenses which I have disposed of, as they do not come within your jurisdiction, but have to be disposed of by the court. The allegations that set forth the facts are the third and fourth. The third alleges that the highways mentioned in the complaint are not in Barnwell county, but in Bamberg county. I believe that is admitted the county now is Bamberg, so that's settled by admission. The fourth defense, in effect, denies that McFail the plaintiff, is entitled to any damages, denies that the county is chargeable with negligence and mismanagement, and denies all the other allegations of the complaint. So the main issues for you to determine are whether this plaintiff is entitled to any damage; whether the county has been shown guilty--proved guilty--of any negligence or mismanagement. The action is brought under a statute, which I read to you in the opening of the case, and shall read again. Section 1169 of the Revised Statutes says: 'Any person who shall receive bodily injury or damage in his person or property through a defect or in the negligent repair of a highway, causeway or bridge may recover, in an action against the county, the amount of actual damages sustained by him by reason thereof: provided, such person has not in any way brought about such injury or damage by his own act or negligently contributed thereto. If such defect in any road, causeway or bridge existed before such injury or damage occurred, such damage shall not be recovered by the person so injured if his load exceeded the ordinary weight: provided, further, that such county shall not be liable unless such defect was occasioned by its neglect or mismanagement.' The terms of that statute place upon a plaintiff bringing an action under it the burden of proving, first, as in this case, proving by the preponderance of the evidence, first, that there was, injury to the person; that is to say, that he sustained bodily injury, if he alleges it in this case. Also, if he alleges injury to property, he must prove, second, that there was a defect in the bridge or a want of repair in the bridge, rendering it unsafe. Third, he must prove to your satisfaction, by the greater weight of the testimony, that the defect or want of repair was due to the negligence of the county. The statute speaks of negligence or mismanagement. He must, therefore, show that the defect was due to the negligence or mismanagement of the county; must show that he did not in any way bring about the injury complained of, either by his own act or by his contributory negligence. The act also requires him to show that the load he was carrying in the vehicle did not exceed the ordinary load. It is admitted in this case that question should not arise; it is admitted that in a buggy carrying one or two men the question of weight need not arise. And, sixth, as he claims damages, he must satisfy the jury, by actual proof, of the amount of damages,--because he is seeking for actual damages,--he must therefore prove them; give you such facts as will enable you to know how much he has been damaged. He asks twenty-two hundred dollars,--two thousand dollars for bodily injuries, and two hundred dollars injury to property. You are to say how much he has proved, either or both. The basis of this action is negligence on the part of the county, so it is well for the jury to know what is meant by negligence. There is nothing mysterious about negligence; it simply means want of due care, under the circumstances. When a county charged with a duty performs that duty with proper care and attention, it has done all the law requires. If he fails, if he does not give that care and attention which common sense and reason would dictate, and causes us to expect of him, then he is guilty of negligence; and if because of that negligence some person is injured, and suffers damages, then the county is liable in damages for the amount proved. That negligence may be shown by evidence as to what was done by such an officer, or it may be shown by evidence of what was left undone; because, when a man does not do that which a prudent and careful person should or would have done under the circumstances, he is guilty of negligence just as much as if he does that which a prudent and careful person would not have done under the circumstances. That care and diligence which the law requires, the absence of which is negligence, does not mean absolute, unceasing carefulness or sleepless watching, but, as I said before, as common sense would lead us to expect, should or would be exercised under the circumstances by a prudent and careful person.

The statute mentions the word 'mismanagement,'--'negligence or mismanagement.' It is another form of negligence, of doing a thing in the wrong way. The statute also speaks of contributory negligence in the expression, 'where such person has not in any way brought about such injury or damage by his own act, or negligently contributed thereto.' Usually, that matter of contributory negligence has to be pleaded in the answer and proved by the defendant, but the statute requires that he shall not be guilty of contributory negligence, and requires him to allege in his complaint that he was not guilty of such. In his complaint McFail says he was not guilty of contributory negligence. He says the act was not due to any act of his or negligence on his part. Therefore he is required to prove that he has not been guilty of negligence; that the act was not due to any act on his part or to his contributory negligence. That does not mean he must show he was entirely free from negligence, because a plaintiff in a case like this may have been to some extent careless, but though careless, if he shows the injuries he complains of were due primarily and immediately to the negligence of the defendant,--in other words, if he shows that the negligence of the defendant was the proximate and immediate cause of the injury,--the defendant will be liable in damage. A man may be guilty of negligence or carelessness to a certain extent himself, and may be injured by the carelessness or negligence at the same time of another, and, if the carelessness of the other was the immediate cause of the damage done, then the carelessness of the plaintiff cannot be called 'contributory negligence,' although he may have been to some extent negligent. It must be contributory to the injury; that is to say, that the injury would not have been inflicted but for his negligence. If, therefore, the injury would have been inflicted in spite of any negligence on the part of the plaintiff, if the evidence shows that the plaintiff's negligence would not prevent him recovering in damages; that is to say, if the defendant's negligence was the proximate cause of the injury notwithstanding the plaintiff's negligence, then the county would be liable. And so, also, it is not sufficient for the plaintiff to establish his right to a verdict to prove the county was negligence or careless, but he must prove that negligence or carelessness of the county was the proximate cause of the injury complained of. Because it is conceivable that the county may have been negligent and careless in this matter of the bridge, but it is also conceivable that the plaintiff's own negligence may have been the proximate cause of the injury. And if the jury are satisfied, in a case like this, that the injury would not have occurred but for the negligence of the plaintiff, in that case the plaintiff cannot recover. You will therefore bear in mind

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