Tobias v. Carolina Power & Light Co.

Decision Date26 April 1939
Docket Number14871.
Citation2 S.E.2d 686,190 S.C. 181
CourtSouth Carolina Supreme Court

Dargan & Paulling, of Darlington, for appellant.

C E. Gardner, of Darlington, for respondent.


By this appeal we are asked to reverse the judgment of the lower Court which overruled a demurrer interposed by the appellant to the complaint.

Respondent brought action for the recovery of damages alleged to have been sustained by him on the night of January 22, 1938, when he was struck by an automobile while walking on a public highway near the town of Darlington, which threw him against the exposed guy wires of an electric light pole installed and maintained by the appellant near the center of the highway resulting in injury to his left leg and to his left eye, and causing him to lose the sight of his left eye.

It appears that the appellant demurred to the original complaint, after which, and before the demurrer was heard the respondent served notice of a motion for leave to amend the complaint in certain particulars. Upon the hearing the lower Court passed an order overruling the demurrer and permitting certain amendments to the complaint.

It is not necessary to analyze the original complaint to determine whether error was committed in overruling the demurrer. If the demurrer had been sustained, the respondent would have been entitled to amend his complaint in the same particulars as were allowed by the Court, and the appellant would have had no good ground for complaint. Coral Gables v Palmetto Brick Co., 183 S.C. 478, 191 S.E. 337. The same objections are made to the amended complaint as were directed against the original complaint, and the same legal issues arise. Both parties have treated the case as though a demurrer had been interposed by the appellant to the amended complaint, when in fact this was not done. For the sake of expediency we shall, therefore, discuss the issues on the basis of the amended complaint.

The major question presented by the appeal is based upon the contention that it appears from the complaint that the injury to the respondent was due to the independent, efficient, intervening act of a third person, to wit, the unknown driver of the automobile, for which the appellant was in nowise responsible, and which intervening act constituted the proximate cause of the plaintiff's injuries.

It is alleged in the amended complaint that the pole was located about the center of the highway, and was supported by two guy wires extending from its top, and anchored to the ground in the highway on each side, a considerable distance from the pole; "that the whole of the said highway or road was much used by the public at said projected or widened place and all around the said guy wires and pole, on both foot and in vehicles for a number of years prior to plaintiff's alleged injuries, all of which defendant knew or should have and would have known if it had made reasonable inspections of said pole, wires, and highway or road." It was also alleged that the appellant had originally maintained guards or boards around the guy wires so as to protect the public from being injured by the naked wires, but at the time of the accident, and for a long while prior thereto, the appellant had negligently and willfully failed to so protect the wires, which, because of their unprotected position in the highway, constituted a serious and dangerous instrumentality; "that on account of the ever increasing number, nature and different kinds of accidents to pedestrians and other travelers happening on the roads and highways of this State, and for a long time prior to plaintiff's said injury, the defendant knew or should have known that the said pole and guy wires so constructed at such place, which was so frequently used by the public, were a dangerous obstruction in said road, and would in all probability, or very likely cause some injury of some kind to members of the public."

The complaint went on to allege that all of the injuries suffered by the respondent were caused as a direct, natural, and proximate result of the appellant's gross negligence in installing and maintaining the guy wires in such a dangerous place or condition, together with the joint and concurring negligence of the driver or operator of the automobile which approached from the rear and struck the respondent.

While the general rule is that, if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the former must be considered as too remote, still, if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such...

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