Young v. City of Camden

• Decision Date: 12 July 1938
• Docket Number: 14700.
• Citation: 198 S.E. 45,187 S.C. 414
• Parties: YOUNG v. CITY OF CAMDEN.
• Court: South Carolina Supreme Court

198 S.E. 45

187 S.C. 414

YOUNG v. CITY OF CAMDEN.

No. 14700.

Supreme Court of South Carolina

July 12, 1938

Appeal from Common Pleas Circuit Court of Kershaw County; Wm. H Grimball, Judge.

Statutory action by Barney A. Young against the City of Camden for personal injuries sustained when plaintiff's automobile collided with traffic marker. On motion of respondent a nonsuit was rendered, and plaintiff appeals.

Reversed.

W. L DePass, Jr., of Camden, for appellant.

L. A Wittkowsky and M. M. Johnson, both of Camden, for respondent.

FISHBURNE Justice.

This was an action for personal injuries, resulting from a collision of an automobile driven by the appellant, with the traffic marker or silent policeman placed and maintained in the center of the intersection of DeKalb and Campbell Streets, in the city of Camden.

The action was brought by authority of Section 7345 of our 1932 Code, and upon trial resulted in a nonsuit, granted on the motion of the respondent upon the ground that the appellant was guilty of contributory negligence as a matter of law.

The accident occurred on the night of April 20, 1937, about two o'clock in the morning, as a result of which the appellant was seriously injured.

The specifications of negligence charged against the city are:

"(a) In maintaining a street within its corporate limits for use of its citizens and the public in a defective condition;

(b) In failing to keep said street in such proper repair as to enable people traveling in automobiles thereon to travel same without injury;

(c) In placing said traffic marker in the center of the intersection of DeKalb and Campbell Streets and permitting it to protrude seven (7) or eight (8) inches above the face of the pavement and sinking its base two (2) or three (3) inches into concrete;

(d) In failing to remove said traffic marker after the City of Camden knew or should have known that it had been the cause of several automobile accidents;

(e) In failing to provide warning to the traveling public of the danger of said traffic marker;

(f) In failing to place some light or other suitable signal or reflector upon said traffic marker to warn the public traveling said street in the nighttime of the location and danger of said traffic marker;

(g) In permitting said traffic marker to become covered with mud and sand, thereby impairing its visibility;

(h) In failing to light an electric lamp at said intersection or to light the street at and near the place of the collision, thereby constituting a defect in said street."

The appellant narrated the facts and circumstances of the accident as follows:

"On the 20th day of April, 1937, I was driving an automobile from Columbia toward Camden. Just before you reach the city limits of Camden there are two railroad crossings which are right rough, and it is necessary to come across them rather slowly. From these tracks right at the city limits, up to this intersection of DeKalb and Campbell Streets is right smart uphill. When I crossed those tracks I proceeded after entering the city of Camden, around 20 or 25 miles an hour. When I reached the intersection of these streets I struck something. When I hit it, I remember flying up on the steering wheel. I don't remember anything else. * * * You would have to be up in the intersection to get your car where your lights come out of the air down on the road and it becomes level. The point at which I struck this obstruction seemed very dark. I don't remember seeing any light there at all. I didn't see anything at all in the road. I had good headlights on the car. I thought I was traveling near the right side of the road. My left front wheel struck this obstruction. * * * There was nothing to obstruct my view if the light in the intersection had been burning, as the car was open, the top being down."

The testimony of the appellant further tended to show that the silent policeman, made of concrete, was firmly implanted in the center of this intersection, and weighed about 150 or 200 pounds; was dome shaped, about ten inches high above the surface of the street, and about a foot and a half wide at its base. The silent policeman had been located there for many years, according to the testimony, had become very dull and drab in hue, resembling in color the pavement, and there was no reflector or other lighting device attached to it.

From other testimony on behalf of the plaintiff, it could reasonably be inferred that the electric light, suspended overhead, was not burning on the night of the accident. It could likewise reasonably be inferred, that at no other intersection on DeKalb Street had the city placed an unlighted silent policeman similar to the one in question.

DeKalb Street, at the point where the collision occurred, is thirty-two feet in width, is a populous street, carrying a heavy tide of traffic, and is a part of United States Highway No. 1. The appellant operated a garage in the city of Camden, but lived at Westville, several miles away, on State Highway No. 26, which he used in going back and forth from his home to his business. He testified that he did not remember ever seeing the silent policeman with which he collided prior to the accident.

One ground of the respondent's motion for a nonsuit was that the appellant failed to prove any actionable negligence on the part of the city. The lower court held, and we think correctly so, that the testimony on that point made an issue for the jury.

The question of the liability of a municipality with reference to the maintenance of a traffic marker or silent policeman at a street intersection, seems to have arisen, as yet, in but a comparatively few jurisdictions.

In view of the holding of the lower court it becomes unnecessary to give time to a discussion of these cases. They undoubtedly sustain the lower court in its holding. We cite them because of their general applicability. Valley v. City of Gastonia, 203 N.C. 664, 166 S.E. 791; Aaronson v. City of New Haven, 94 Conn. 690, 110 A. 872, 874, 12 A.L.R. 328; Riley v. City of Ronceverte, 108 W.Va. 222, 151 S.E. 174, 175; City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713, 39 A.L.R. 777; Town of Hobart v. Casbon, 81 Ind.App. 24, 142 N.E. 138; Titus v. Town of Bloomfield, 80 Ind.App. 483, 141 N.E. 360; Speas v. City of Greensboro, 204 N.C. 239, 167 S.E. 807. See Annotations 12 A.L.R. 328; 39 A.L.R. 777.

The exercise of due care to keep its streets in a reasonably safe and suitable condition is one of the positive obligations imposed upon a municipal corporation under our statute; and such public thoroughfares must be kept in such physical condition as to be safe for street purposes. Burnett v. Greenville, 106 S.C. 255, 91 S.E. 203, Ann.Cas.1918C, 363.

But under our statute, a plaintiff suing a municipality, must not only show negligence on the part of the city in its maintenance of the public streets, but in order to recover, he must also show that he "has not in any way brought about any such injury or damage by his * * * negligent act or negligently contributed thereto."

As was said in Barksdale v. City of Laurens, 58 S.C. 413, 36 S.E. 661, 663: "While, in ordinary actions for negligence, contributory negligence by the plaintiff is a matter of defense, and is not available on a motion for nonsuit, yet in this action under the statute it is necessary for plaintiff, as a part of his case, to show that his own negligence did not contribute to the injury; for that is one of the conditions of his right of action against the municipality, which depends wholly upon the statute. Hence, if the evidence on the part of plaintiff does not tend to negative contributory negligence on his part, a nonsuit is proper."

In the case at bar, the appellant was nonsuited upon the ground that he was contributorily negligent. And this conclusion, in addition to other considerations, was rested upon the fact that he violated an ordinance of the city of Camden which requires that one driving an automobile must drive to the right of the center of the street. The ordinance in question provides, "That every automobile or motor vehicle, hack or transfer, traveling or passing on or over any of the public streets of the City of Camden, shall keep entirely on the right side of the center of the street, except in case of emergency, so as not to obstruct the passage of any persons, carriages, animal, or thing on the other side of the center thereof."

What was said by our court in Lancaster et al. v. City of Columbia, 104 S.C.

228, 88 S.E. 463, affirming a judgment in favor of the plaintiff, is pertinent here. In that case, the court had under consideration a similar ordinance, which required a pedestrian on the sidewalk to go to the right, it...