Walker v. Chester County
| Decision Date | 16 February 1894 |
| Citation | 40 S.C. 342,18 S.E. 936 |
| Parties | WALKER v. CHESTER COUNTY. |
| Court | South Carolina Supreme Court |
Highways—Defects—Pleading — Contributory Negligence.
Gen. St. § 1087, giving the right of action against the county for damages for defects in roads, as amended in 1892 by the proviso that the person injured has not himself caused the injury or negligently contributed thereto, requires the complaint to affirmatively disclaim contributory negligence.
Appeal from common pleas circuit court of Chester county; Ernest Gary, Judge.
Action by Bersha H. Walker against Chester county for damages for injuries caused by a defect in a highway. Demurrer sustained, and complaint dismissed. Plaintiff appeals. Affirmed.
Henry & Gage, for appellant.
Will A. Barber, for respondent.
McGOWAN. J. This was an action to recover damages, alleged to have been sustained by reason of a defective highway. The complaint stated that on February 23, 1893, the plaintiff was passing along the public highway of Chester county on the Worthy's ferry road, at a point between Dry Fork and the intersection of the said road by the Georgia, Carolina & Northern Railway, and that by reason of a delect in the repair of the said road the buggy which conveyed the plaintiff was overturned and broken, the horse which drew plaintiff was held fast In the mire so that it had to be prized out, the harness upon the horse was broken, the plaintiff was bruised and injured in her person, and her wearing apparel was utterly ruined; that the defect in said highway consisted in a bog, caused by the excessive accumulations of water and the wear of passing wheels; that its existence was well known to the proper authorities of the defendant, and was the result of their gross negligence, as plaintiff verily believes; that by reason of the injuries suffered by the plaintiff in her person and property, and enumerated in paragraph 1 hereof, she has been damaged in the sum of?250, etc. The defendant answered, denying each and every statement in the said complaint contained; that if the highway referred to in the complaint was defective, it was due to providential causes, and not to any carelessness on the part of the defendant county, or its agents or servants; that, the defendant and its agents and servants used due care and diligence in repairing said highway and keeping the same in good repair; and that, if the plaintiff were injured in her person or property, such injury was not caused by any negligence or carelessness on the part of the defendant or Its agents and servants, but was owing to the carelessness and negligence of the plaintiff herself, etc. The cause came on to be heard at the October term, 1893, before Judge Gary and a jury, when the defendant interposed an oral demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it failed to allege that the plaintiff did not in any way bring about her injury or damage by her own act, or negligently contribute thereto; and, further, that it failed to allege that at the time of the injury the plaintiff's load did not exceed the ordinary weight, etc. The judge...
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