Morris v. Mills

• Decision Date: 01 September 1922
• Docket Number: 10995.
• Citation: 113 S.E. 632,121 S.C. 200
• Parties: MORRIS v. MILLS ET AL.
• Court: South Carolina Supreme Court

113 S.E. 632

121 S.C. 200

MORRIS v. MILLS ET AL.

No. 10995.

Supreme Court of South Carolina

September 1, 1922

Appeal from Common Pleas Circuit Court of Aiken County; J. E Peurifoy, Judge.

Action by E. D. Morris, as administrator of Edna Mae Morris deceased, against Langley Mills and another. From a judgment on a directed verdict for defendants, plaintiff appeals. Affirmed as to the defendant named, and reversed and new trial ordered as to the defendant Aiken County.

Cothran J., dissenting in part.

R. L. Gunter and John F. Williams, both of Aiken, for appellant.

Hendersons and J. B. Salley, all of Aiken, for respondents.

MARION, J.

The action is for damages on account of alleged wrongful death of plaintiff's intestate, a young girl 5 years and 9 months of age, who was drowned by falling from a causeway on a public highway of the defendant Aiken county into a pond alongside the highway on the premises of the defendant Langley Mills. At the place of the accident the highway consists of a causeway constructed over and across the water, some 5 or 6 feet deep on both sides of the causeway, of an artificial pond, maintained as a fishpond and for purposes of watering stock by the Langley Mills. It is alleged that the death of the child was caused by the negligent and willful failure of the defendants to erect and maintain "proper fencing or safeguards" to prevent children and others going on and across said causeway from falling into the pond. It is admitted in the answer of the defendant Aiken County that--

" Said road is a public highway forming a part of the highway leading from Aiken to Augusta, Ga., and belongs to the county of Aiken as such public road."

Upon the trial below the circuit judge directed a verdict in favor of both defendants. The only exceptions which it will be necessary to consider are those imputing error to the trial judge in so ruling.

The alleged delict upon which plaintiff's cause of action is based was the failure to erect and maintain proper safeguards to prevent falling from the causeway into the pond. Since it is undisputed that the causeway was a part of the public highway, wholly under the jurisdiction and control of the defendant county, in the opinion of a majority of this court the duty, if any, to prevent falling from the causeway into the pond rested upon the county, and not upon the defendant Langley Mills. No recovery against Langley Mills is sought upon the theory that the Mills was guilty of actionable negligence in merely maintaining the pond in proximity to the highway. It is considered, therefore, that the verdict was properly directed as to the Langley Mills.

We are of the opinion, however, that there was error in directing a verdict in favor of the defendant Aiken county. The testimony tended to establish that the plaintiff's intestate was on her way home from school; that the schoolhouse was on one side of the pond and her home on the other; that in traveling the highway in company with other children her attention was attracted by a stick, with a string attached thereto, floating on the water; that she pulled off her shoes and attempted to reach the stick; that at the point where this attempt was made the water of the pond was within a few inches of the level of the causway; that there was a plank railing about 1 by 5 inches, some 18 or 20 inches from the ground, tacked to posts about 15 feet apart, along the side of the causeway next to the water; that the child climbed over this railing, and was holding with one hand to the plank railing, reaching for the attractive stick with the other hand, when she fell into the pond and was drowned. The causeway was about 15 feet in width (according to plaintiff's contention) on a muchtraveled highway in the center of the town of Langley, a town of about 2,000 inhabitants, and was used for passage of about 250 or more children daily.

The only question for consideration is whether the evidence adduced would reasonably warrant an inference of actionable negligence as against the county. That the failure to provide adequate guard rails upon a causeway or bridge may constitute a defect in or amount to a negligent repair of such causeway or bridge is too well settled to require the citation of authority. Blakeley v. Laurens County, 55 S.C. at pages 424, 425, 33 S.E. at page 503. The measure of the county's duty in that regard is ordinary care to provide against such dangers to the traveling public as may reasonably be anticipated, having due regard to the character of the travel, the incidental purposes for which the highway may be lawfully used, and the nature of the danger at the point in question. While by the expresss terms of the statute (section 1972, Civil Code of 1912) county authorities are not bound to anticipate dangers that may arise from the negligent use of the highway, they are bound to take notice of the fact that children of tender years, incapable of exercising due care as measured by the standard of the man of ordinary sense and prudence, may lawfully use the people's highway, and that such users are, both from lack of discretion and from childish sportiveness, subject to dangers that would not beset the traveler of mature years. The use thereof by children for purposes of play and sport is not as a matter of law an illegitimate use of a highway, "not to be anticipated by the authorities whose duty it is to keep highways in a reasonably safe condition." Irvine v. Town of 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. The fact that plaintiff's intestate, a child of an age presumed to be incapable of negligence (Tucker v. Buffalo Mills, 76 S.C. 539, 57 S.E. 626, 121 Am. St. Rep. 934; Stone v. Florence, supra), temporarily diverted from the use of the causeway as a place of travel by the attractions of the pond, was at the time of the casualty using the causeway for purposes of play, does not warrant the legal conclusion of nonliability on the ground that she was not "using the highway as such."

The issues raised by the facts of the case at bar should have been submitted to the jury.

The judgment as to the defendant Langley Mills is affirmed. The judgment as to the defendant Aiken county is reversed, and a new trial ordered.

GARY, C.J., and FRASER, J., concur.

COTHRAN J. (concurring and dissenting).

I concur in the affirmance of the judgment in favor of the defendant Langley Mills, but dissent from the reversal of the judgment in favor of the county of Aiken.

The connection of the county of Aiken with the occurrence arises out of the following facts:

Langley Mills have maintained for many years a dam across Mockingbird branch (a tributary of Horse creek, at Langley, S. C.), which created a millpond, extending some distance up the stream; the public highway leading from Aiken to Augusta, passing through the village of Langley, formerly made a detour at the pond passing down a hill, across the stream below the dam, and ascending a hill on the other side. The county authorities with the consent of Langley Mills cut out this detour by constructing an embankment or causeway directly across the pond upon which the highway was located, some 35 feet wide. Iron pipes were laid under the embankment, so that the flow of water into the pond would not be impeded. The new part of the highway thus located was under the jurisdiction of the county authorities, and the old part of it was abandoned. On each side of the highway thus located across the pond the county authorities erected a single plank fence, near the edge of the water. At each end of the new road there was a substantial plank fence, inclosing lots belonging to the Mills, used for various purposes. The planks, 6 inches wide in the single plank fence, were nailed to posts some 12 or 15 feet apart, and were about 2 feet from the ground.

The schoolhouse of the village is located on one side of the pond and a number of operatives' houses on the other. Many children used the road in going to and returning from school, estimated at 250 per day.

On the occasion in question the Morris girl was returning from school with a party of other school children. While in the highway near the center of the pond she was attracted by a stick with a string tied to it in the water near the bank. She announced her intention of getting it, and was warned by her companions not to make the attempt. She paid no heed to the warning, pulled off her shoes and stockings, climbed over the rail of the fence, stood near the edge of the water, holding to the rail with her left hand, and in reaching for the stick with her right, lost her hold of the rail and fell into the pond, drowning before help could reach her.

A majority of the court are of opinion that the verdict was properly directed in favor of the Langley Mills, and upon argument declined to hear from counsel representing that defendant. The basis of that conclusion, as I understand, is as follows: The complaint is not drawn upon the theory that the Langley Mills was guilty of negligence in maintaining a place or instrumentality attractive and dangerous to children of tender years, but upon the theory that it was negligent in not maintaining proper safeguards to prevent such a child from falling into the pond, and the child was attracted by the water and fish, "and in looking over the edge of same, it not being protected by a proper safeguard and fence as aforesaid, she fell into the pond or lake and was drowned." The testimony fails to show that her fall was due to any defect in the fence; on the contrary that she had safely climbed over the fence, and fell when her hold upon the rail gave way; and that there was no evidence tending to establish the...