Triplett v. City of Columbia

• Decision Date: 17 April 1918
• Docket Number: 9957.
• Citation: 96 S.E. 675,111 S.C. 7
• Parties: TRIPLETT v. CITY OF COLUMBIA.
• Court: South Carolina Supreme Court

96 S.E. 675

111 S.C. 7

TRIPLETT v. CITY OF COLUMBIA.

No. 9957.

Supreme Court of South Carolina

April 17, 1918

Appeal from Common Pleas Circuit Court of Richland County; M. L Smith, Judge.

Action by Vashti Triplett against the City of Columbia. Judgment for defendant and plaintiff appeals. Affirmed.

Order of circuit court, sustaining demurrer to complaint:

Omitting the merely formal parts of the complaint, the plaintiff in this cause alleges, substantially, that for some time prior to the 1st day of June, 1916, the defendant, through the neglect and mismanagement of its agents and employés permitted a large pool of stagnant water, "about twenty-five feet long by fifteen feet wide, and varying at different times from a foot to four feet in depth," containing "large quantities of trash, refuse, and decaying matter," to remain in and upon Pulaski street a public highway within the corporate limits of the said city of Columbia; that the plaintiff, "who resided near to the pool or puddle above referred to," without any negligence on her part or in any way negligently contributing thereto, "was caused to contract colitis on or about the 1st day of June, 1916, and was thereby made sick and ill, and to continue sick and ill for a long period of time, and be placed in danger of death, and to suffer great pain, misery and discomfort," to her great damage, and that such injuries and damage were due to the neglect and mismanagement of the defendant in the particulars mentioned.

The cause was heard by the court on a motion to dismiss the complaint (section 198 of the Code of Civil Procedure), and the sole question presented therein for the determination of the court is whether a municipal corporation is liable, under the provisions of section 3053 of the Civil Code 1912, for damages under the facts set forth in the complaint, which are admitted to be true for the purpose of this inquiry. Tutt v. Railway, 28 S.C. 397, 5 S.E. 831.

It is the settled law of this state that a municipal corporation vested with certain powers under the Constitution and laws of the state, and chargeable with the duty of keeping the streets or public highways within its corporate limits in proper repair, is not liable in a civil action for damages for injuries to the person or property sustained in consequence of a violation of such duty, in the absence of a statute imposing such liability, and a substantial compliance with the requirements and conditions upon which such liability is predicated.

Such a liability, however, has been created in this state, under the conditions and limitations therein imposed, by a legislative enactment (21 Stat. 91) now appearing as section 3053 of the Civil Code 1912, and which is as follows:

"Any person who shall receive bodily injury, or damages in his person or property, through a defect in any street, causeway, bridge or public way, or by reason of defect or mismanagement of anything under control of the corporation within the limits of any town or city, may recover, in an action against the same, the amount of actual damages sustained by him by reason thereof. If any such defect in a street, causeway or bridge existed before such injury or damage occurred, such damage shall not be recovered by the person so injured if his load exceed the ordinary weight: Provided, the said corporation shall not be liable unless such defect was occasioned by its neglect or mismanagement: Provided, further, Such person has not in any way brought about any such injury or damage by his or her own negligent act or negligently contributed thereto."

Construing the provisions of this act, and those of a similar act, establishing the liability of the county for injuries to the person and property for defects in the public highways and bridges under its control, the court at an early period declared the ground upon which such liability rested. Acker v. County of Anderson, 20 S.C. 495; Brown v. Laurens County, 38 S.C. 282, 17 S.E. 21; Mason v. County of Spartanburg, 40 S.C. 390, 19 S.E. 15, 42 Am. St. Rep. 887; Dunn v. Barnwell, 43 S.C. 398, 21 S.E. 315, 49 Am. St. Rep. 843; Barksdale v. Laurens, 58 S.C. 413, 36 S.E. 661; Hutchison v. Summerville, 66 S.C. 448, 45 S.E. 8; Bryant v. Orangeburg, 70 S.C. 137, 49 S.E. 229. In the case of Dunn v. Barnwell, supra, Mr. Chief Justice McIver, delivering the opinion of the court, in his usual clear and forceful statement, does not leave the slightest doubt that liability under this statute is limited solely to such injuries to the person and property as are due to "a defect in any street, causeway, bridge or public way," and that the terms "neglect" and "mismanagement" are therein used in connection with keeping the streets, etc., in proper repair. That such is the unmistakable conclusion of the court, it is only necessary to refer to the language of the learned Chief Justice (43 S.C. at page 401, 21 S.E. at page 316, 49 Am. St. Rep. 843), as follows: "It is apparent from the title of this act, as well as from the terms used in the body of the act, that the sole purpose was to give a person who had sustained an injury by reason of a defect in a street a right of action to recover damages for such injury. The title of the act is as follows: 'An act providing for a right of action against a municipal corporation for damages sustained by reason of defects in the repair of streets, sidewalks, and bridges, within the limits of said municipal corporation,' and it is manifest that the purpose thus declared in the title was adhered to in the body of the act, especially from the language used in the proviso above set out, where it is declared that the corporation should not be liable, 'unless said defect was occasioned by its neglect or mismanagement'; indicating very clearly that the term 'mismanagement,' as used in a previous part of the act, meant mismanagement in making repairs on the streets, so that the corporation should be held liable not only for neglect in making the repairs on the streets, but also for mismanagement of anything under the control of the corporation in making such repairs. There is nothing whatever in the act indicating an intention on the part of the Legislature to make a municipal corporation liable for any other nonfeasance or misfeasance on its part, except such as was connected with the keeping of the streets, etc., in proper and safe repair."

This doctrine, without the slightest qualification, was recognized and applied in several of the subsequent cases (Barksdale v. Laurens, supra; Hutchison v. Summerville, supra; Bryant v. Orangeburg, supra), and not until the decision of the court in the case of Irvine v. Greenwood, 89 S.C. 511, 72 S.E. 228, 36 L. R. A. (N. S.) 363, could any question with regard to a modification thereof have been suggested with any degree of plausibility. And it is plain to the court that an examination of the latter case will disclose no intention of the court whatever to abandon the basis of liability so strongly stated in the case of Dunn v. Barnwell, but merely to define, more clearly and definitely, as was made necessary by the facts of that case, the motive and extent of the duty imposed "to keep a street in repair," for the violation of which the act established liability. This distinction is clearly recognized and stated by Mr. Justice Woods in an exceedingly able and elaborate opinion in the use of the following language (89 S.C. at pages 519, 520, 72 S.E. 228, 231, 36 L. R. A. [N. S.] 363):

"In the case of Dunn v. Barnwell, 43 S.C. 398, 21 S.E. 315 , the court, construing the statute in the light of its title, held that the liability created by it was limited to misfeasance or nonfeasance connected with the keeping 'of any street, causeway, bridge or public way' in proper repair. The construction has been followed in cases arising since the statute was incorporated in the Civil Code. Hutchison v. Summerville, 66 S.C. 448, 45 S.E. 8; Bryant v. Orangeburg, 70 S.C. 142, 49 S.E. 229."

"But we are unable to give the duty of keeping streets in repair the narrow meaning contended for by respondents. To keep a street in repair means to keep it in such physical condition that it will be reasonably safe for street purposes. It is not enough that its surface should be safe. A street is not in repair when poles or wires or other structures are so placed in or over it as to be dangerous to those making a proper use of the street. In Duncan v. Greenville, 71 S.C. 170, 50 S.E. 675, it was held that a wagon left on the public road so as to put travelers in peril must be regarded, under the statute, as a failure to keep the road in repair. In this case the pole was placed in the street as a fixture and became a part of the street, which it became the duty of the municipal authorities to keep safe."

Applying the principle thus declared, the defendant was held liable under the act for an injury to the plaintiff, a boy 17 years of age, caused by coming in contact with a chain hanging by the side of an electric light pole which conveyed a fatal charge of electricity.

In the case of Stone v. City of Florence, 94 S.C. 375, 78 S.E. 23, the defendant was held liable under the statute for an injury to a child of tender years by falling into an unguarded ditch, in which the defendant had burnt some trash and had left a smouldering fire, regardless of whether the ditch was in the street or on the extreme edge thereof. The most casual consideration of this case obviously sustains the rule declared in the case of Irvine v Greenwood. In stating the conclusions of the court, Mr. Justice Hydrick, 94 S.C. at pages 377, 378, 78 S.E. at pages 22, 24, says: "In Irvine v. Greenwood, 89 S.C. 511 [72 S.E. 228, 36 L. R. A. (N. S.) 363] the neglect or mismanagement of...