Oswald v. City of Orangeburg

• Decision Date: 14 January 1930
• Docket Number: 12808.
• Citation: 151 S.E. 230,154 S.C. 105
• Parties: OSWALD v. CITY OF ORANGEBURG.
• Court: South Carolina Supreme Court

151 S.E. 230

154 S.C. 105

OSWALD v. CITY OF ORANGEBURG.

No. 12808.

Supreme Court of South Carolina

January 14, 1930

Appeal from Common Pleas Circuit Court of Orangeburg County; M. M Mann, Judge.

Action by A. E. Oswald against the City of Orangeburg. From the judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The complaint, directed to be reported, was as follows:

I. That the defendant, city of Orangeburg, is a municipal corporation, organized and existing under the laws of the state of South Carolina.

II. That the defendant, city of Orangeburg, under the power vested in it by law, keeps and maintains a water and light department and a fire department, for the purpose of extinguishing and fighting fires occurring within its limits. That it has the sole and exclusive control of said departments and is charged with their careful management. That the employees working in the departments are required by the defendant, city of Orangeburg, to carry out and fully comply with all orders given by the parties placed in charge of the departments by the defendant and the officials of the city of Orangeburg.

III. That on or about the 14th day of April, 1927, the plaintiff A. E. Oswald, was in the employ of the defendant as a laborer in its water and light department and its fire department and had been, for a number of years, acting and working under instructions and orders of the defendant, city of Orangeburg its superintendents and representatives in charge of its affairs, and was at all times subject to do any kind of work that they might direct him to do. That his duties as an employee in the water and light department was to look after the upkeep and repair of the water mains in its streets, light poles and wires running through the streets of the city, and to keep the streets clear, unobstructed, and in good condition while working and making repairs. That his duties as a fireman in the fire department was to respond when called by the superintendent or chief of the fire department, and, in case of a fire in the city, join with the main fire fighting force and work and perform the duties of a regular fireman, fight and extinguish fire, protect property, keep the streets clear of all material that might fall from the burning building on the sidewalks and into the streets, remove any obstruction that may be placed in the streets by the fireman while fighting fire, and repair any portion of the sidewalks or streets that was rendered in an unsafe condition, keep the sidewalks and streets in a safe condition for the traveling public and pedestrians who may be using the sidewalks and streets of the city. That the fire department is equipped with fire engines, trucks, machinery, ladders, and the usual fire fighting equipment.

IV. That on or about the 14th day of April, 1927, at about 4:30 o'clock in the morning, the plaintiff, A. E. Oswald, was called out by the chief of the fire department to assist in extinguishing a fire in a large three-story building on the corner of Russell and Middleton streets, one of the main business sections of the city of Orangeburg. That, as the chief of the fire department, was on his way to the fire in the car used by the chief of the fire department, he took on the plaintiff, A. E. Oswald, and carried him to the fire to assist in fighting and extinguishing the fire, protect adjoining property, keep the streets near and about the burning building clear of all material that may fall or be thrown from the building, and clear of any obstruction that may be placed in the streets by the fireman while fighting the fire, and to keep the streets in a clear and safe condition for the traveling public and pedestrians traveling along the streets and sidewalks of the city near the fire.

V. That the plaintiff, A. E. Oswald, under the orders and directions of the chief of the fire department, and the officials of the defendant, city of Orangeburg, and in line with his duties as one of the firemen, immediately upon reaching the fire, went up one of the ladders used by the fire department that was placed up on the side of the building by the fireman, under the directions and orders of the chief of the fire department and the parties in charge of the fire fighting force, to the top of the building, and worked and fought to extinguish the fire in the loft of the building for about three hours with the other fireman. That the fire began to gain headway over the efforts and work of the fireman, and, after they had been fighting fire for about three hours, the chief of the fire department ordered the plaintiff and the other fireman to come down from the top of the building on the ladder that was used in getting up on the building. That, under the orders of the chief of the fire department, whose orders the plaintiff and the other fireman were required to obey and carry out the plaintiff, A. E. Oswald, came out from the top of the building and started down from the third story on the said ladder, and, just as the plaintiff started down, the end of the ladder that rested on the sidewalk and street near the building titled up and slided out into the street, and threw the plaintiff, and caused him to fall from the top of the ladder that was resting against the top edge of the building into the street, and as the plaintiff was falling, he struck one of the window sills or facing of the building and the top of an iron lamp post in the street by the sidewalk, and was seriously and permanently injured. His...