Morris, Adm'r. v. Langley Mills

113 S.E. 632, 121 S.C. 200, 36 A.L.R. 302, 1922 S.C. LEXIS 192

• Court: Supreme Court of South Carolina
• Decided: September 1, 1922
• Status: Published

Opinions

The opinion of the Court was delivered' by

Mr. Justice Marion.

The action is for damages on account of alleged wrongful death of plaintiff’s intestate, a young girl 5 years and 9 months of age, who was drowned by falling from a causeway on a public highway of the defendant, Aiken County, into a pond alongside the highway on the premises of the defendant, .Langley Mills. At the place of the accident the highway consists of a causeway constructed over and across the water, some 5 or 6 feet deep on both sides of the causeway, of an artificial pond, maintained as a fishpond and for purposes of watering stock by the Langley Mills. It is alleged that the death of the child was caused by the negligent and willful failure of the defendants to erect and maintain “proper fencing or safeguards” to prevent children and others going on and across said causeway from falling into the pond. It is admitted in the answer of the defendant, Aiken County that:

“Said road is a public highway forming a part of the highway leading from Aiken to Augusta, Ga., and belongs to the county of Aiken as such public road.” '

Upon the trial below the Circuit Judge directed a verdict in favor of both defendants. The only exceptions which it will be necessary to consider are those imputing error to the trial Judge in so ruling.

The alleged delict upon which plaintiff’s cause .of action is based was the failure to erect and maintain proper safeguards to prevent falling from the causeway into the pond. Since it is undisputed that the causeway was a part of the public highway, wholly under the jurisdiction and control of the defendant county, in the opinion of a majority of this Court the duty, if any, to prevent falling from the causeway into the pond rested upon the county, and not upon the defendant, Langley Mills. No recovery against Langley Mills is sought upon the theory that the Mills was guilty of actionable negligence in merely maintaining the pond in proximity to the highway. It is considered, therefore, that the verdict was properly directed as to the Langley Mills.

We are of the opinion, however, that there was error in directing a verdict in favor, of the defendant, Aiken County. The testimony tended to establish that the plaintiff’s intestate was on her way home from school; that the schoolhouse was on one side of the pond and her home on the other; that in traveling the highway in company with other children her attention was attracted by a stick, with a string attached thereto, floating on the water; that she pulled off her shoes and attempted to reach the stick; that at the point where this attempt was made the water of the pond was within a few inches of the level of the causeway; that there was a plank railing about 1 by 5 inches, some 18 or 20 inches from the ground, tacked to posts about 15 feet apart, along the side of the causeway next to the water; that the child climbed over this railing, and was holding with one hand to the plank railing, reaching for the attractive stick with the other hand, when she fell into the pond' and was drowned. The causeway was about 15 feet in width (according to plaintiff’s contention) on a much-traveled highway in the center of the town of Langley, a town of about 2,000 inhabitants, and was used for passage of about 250 or more children daily.

The only question for consideration is whether the evidence adduced would reasonably warrant an inference of actionable negligence as against the county. That the failure to provide adequate guard rails upon a causeway or bridge may constitute a defect in or amount to a negligent repair of such causeway or bridge is too well settled to require the citation of authority. Blakeley v. Laurens County, 55 S. C., at pages 424, 425, 33 S. E., at page 503. The measure of the county’s duty in that regard is ordinary care to provide against such dangers to the traveling public as may reasonably be anticipated, having due regard to the character of the travel, the incidental purposes for which the highway may be lawfully used, and the nature of the danger at the point in question. While by the express terms of the statute (Section 1972, Civil Code of 1912) county authorities are not bound to anticipate dangers that may arise from the negligent use of the highway, they are bound to take notice of the fact that children of tender years, incapable of exercising due care as measured by the standard of the man of ordinary sense and prudence, may lawfully use the people’s highway, and that such users are, both from lack of discretion and from childish sportiveness, subject to dangers that would not beset the traveler of mature years. The use thereof by children for purposes of play and sport is not as a matter of law an illegitimate use of a highway, “not to be anticipated by the authorities whose duty it is to keep highways in a reasonably safe condition.” Irvine v. Town of Greenwood, 89 S. C., 511; 72 S. E., 228; 36 L. R. A. (N. S.), 363; Stone v. City of Florence, 94 S. C., 375; 78 S. E., 23. The fact that plaintiff’s intestate, a child of an age presumed to be incapable of negligence (Tucker v. Buffalo Mills, 76 S. C., 539; 57 S. E., 626; 121 Am. St. Rep., 934; Stone v. Florence, supra), temporarily diverted from the use of the causeway as a place of travel by the attractions of the pond, was at the time of the casualty using the causeway for purposes of play, does not warrant the legal conclusion of non-liability on the ground that she was not “using the highway as such,”

The issues raised by the facts of the case at bar should have been submitted to the jury.

The judgment as to the defendant, Langley Mills, is affirmed. The judgment as to the defendant, Aiken county, is reversed, and a new trial ordered.

Mr. Chile Justice Gary and Mr. Justice Fraser concur.