Chewning v. Clarendon County

*521 The opinion of the Court was delivered by Mr. Justice Carter. I am unable to agree to the conclusion reached by Mr. Justice Cothran in his proposed opinion in this case, and, therefore, most respectfully dissent therefrom. The plaintiff, Marian Louise Chewning, as administratrix of the estate of her deceased husband, J. H. Chewning, in behalf of herself and her three children, commenced this action against the defendant, Clarendon County, in the Court of Common Pleas for Clarendon County, in August, 1928, for damages in the sum of $25,000 for the alleged wrongful death of said J. H. Chewning, alleged to have resulted from the breaking in of a bridge of the said county over which the deceased “was driving a tractor of the county and while in its employ.” Issues being joined, the case was tried at the fall, 1928, term of said Court, before his Honor, Judge S. W. G. Shipp, and a jury and at the close of the testimony on behalf of the plaintiff, motion was made by defendant for an order of nonsuit, which motion his Honor, Judge Shipp, refused. Thereafter the defendant offered testimony, and at the conclusion of all the testimony the defendant asked the Court for direction of a verdict. This motion his Honor also refused and the case wás submitted to the jury, resulting in a verdict for the plaintiff in the sum of $4,250.00. From the judgment entered on the verdict the defendant has appealed to this Court. The exceptions impute error to the trial Judge in refusing to order a nonsuit, refusing to direct a verdict for the defendant, and also in his charge to the jury. For the purpose of a full statement of the case and a clear understanding of the issues involved, we quote herewith the pertinent allegations of the complaint, and answer: “Complaint “2. That on or about June 20th, 1928, one J. H. Chewning, aged thirty-eight years, and a resident of Clarendon *522 County, was in the employ of Clarendon County as the driver and operator of a large tractor, the property of the defendant, and the said J. H. Chewning was under the orders and direction of the Supervisor and County Board of Commissioners of Clarendon County, and at the time and place hereinafter alluded to, was operating said tractor in pulling a machine plow, which plow was operated by one Henry Blackmon, also in the employ of the defendant county. “3. That, thus, the said J. H. Chewning was engaged in plowing up, for the purpose of repairs, the public road or highway in Clarendon County leading from Davis Station to Davis Cross Roads, the said road being a part of the public road system of Clarendon County, and it was the duty of the said County to keep the said road properly worked and the bridges thereon safe and in proper repair. “4. The plaintiff is informed and believes that the said tractor weighed about six tons and had been purchased and secured by the defendant County for the purpose of using the same along the above mentioned road and along other roads in Clarendon County, and over the bridges thereon. “5. The plaintiff is informed and believes that on the day in question the said J. H. Chewning, in the discharge of his duties, reached Potato Creek, which flows across said roadway, and found it necessary to operate said tractor over and along the bridge that spans said creek, which crossing, as aforesaid, was necessary in the performance of his duty to the county. “6. That while said tractor was upon said bridge the timbers of the bridge cracked, bent and broke, throwing the said J. H. Chewning into the water of the creek and throwing the tractor against and upon him in such manner as to terribly wound, bruise, and injure the said J. H. Chewning, and to such an extent that the said J. H. Chewning lingered until June 22nd, 1928, and then died from the effects of said injury, and all to the damage of those for whose benefit this *523 suit is brought in the sum of Twenty-five Thousand ($25,-000.00) Dollars. “7. That the said J. H. Chewning had nothing to do with the repair and maintenance of the bridges along said road, knew nothing of the strength of bridge materials, and knew nothing of the condition or structure of the bridge above alluded to, all of such knowledge and duties being charged to other officers and agents of Clarendon County. “8. The plaintiff is informed and believes that the death of the said J. H. Chewning was caused on account of the said bridge being defective and in negligent repair, the timbers thereof being defective, decayed, sappy, too far apart, and too small in size for the support of the tractor, which the defendant required the deceased to operate across said bridge, the entire bridge being defective and in negligent repair'in view of the weight of modern trucks, tractors and road machinery now in common use by the public and by Clarendon County, and all of said defects were through the neglect and mismanagement of Clarendon County, its officers and agents. “9. The plaintiff is informed and believes that the said J. H. Chewning did not in any way bring about said injury or damage by his own act, nor did he negligently contribute thereto, and his load did not exceed the ordinary weight. “10. That the said J. H. Chewning died intestate, leaving as his sole surviving heirs at law and distributees, his widow, Marian Louise Chewning, who has heretofore duly qualified as administratrix of his estate, and his three children: Lila Chewning, aged ten years, Harry Chewning, aged seven years, and Evelyn Chewning aged five years; and this action is brought by the plaintiff in her representative capacity in their behalf.” Answer “For a First Deeense “1. Admits the allegations of paragraph 1 of said complaint and, upon information and belief, the allegations of *524 paragraphs 2, 3, and 10, and only so much of paragraph 6 as alleges the injury and death of J. H. Chewning, the remainder of said paragraph being hereby denied; and only so much of paragraph 4 as alleges the ownership of said tractor and its weight, the remainder of said paragraph being hereby denied; and denies the allegation of paragraphs 5, 7, 8 and 9; and further denies all the allegations of the said complaint inconsistent with the allegations of this answer.” “For a Third Deeense, Aeeeges “3. That there was no defect in the bridge referred to in the complaint occasioned by any neglect or mismanagement of the county and it was in a safe condition .for ordinary traffic and the damage to it and the injuries to the said J. H. Chewning were occasioned by the great and unusual weight of his vehicle, which far exceeded the ordinary weight. “For a Fourth Deeense, Aeeeges “4. That the said J. H. Chewning was experienced in the operation and management of tractors, and was on that account employed by defendant, but w'as cautioned repeatedly and carefully by defendant as to the danger of driving the unusually large and heavy tractor, upon which he was "injured, upon bridges; and he was specifically instructed by defendant not to drive the tractor upon a bridge without getting out and carefully inspecting such bridge and satisfying himself of its sufficient strength, as the county had lighter road machinery which it would use; and then only to drive over the center of the bridge thus distributing the great weight of the tractor, adjusting the trailing machinery to follow in the center. “That upon the occasion of his injury, the said J. H. Chewning disregarded negligently and wilfully' and disobeyed such instructions and was guilty of negligent and careless conduct in the following particulars, which acts brought about his injuries, or at least negligently contributed *525 thereto as proximate causes without which said injuries would not have occurred: “(1) Rushing upon the bridge without inspecting it as he was instructed; “(2) Failing to adjust his machinery and go over the middle of the bridge as he was likewise instructed; “(3) Failing to release the clutch of the tractor and thus disengage its gears when the accident happened. “For a Fifth Defense, Aeeeges “5. That the accident was an ordinary risk of the employment of operating a heavy tractor and road machinery upon county roads and was assumed by the said J. H. Chewning when he undertook such employment.” Exceptions 1 and 2 Under the first exception error is imputed to the trial Judge in refusing to order a nonsuit upon the several grounds upon which the motion was based, and the second exception alleges error in refusing to direct a verdict upon the several grounds stated in the motion. These exceptions, which will be considered together, read as follows : “I. It is respectfully submitted that the Court erred in refusing appellant’s motion for an order of non-suit made at the close of respondent’s evidence upon the ground, set forth in the record, that the resppndent had alleged and proved that the load of her intestate exceeded the ordinary weight instead of submitting evidence to the contrary, that she had submitted no evidence of neglect or mismanagement on the part of the defendant county, and that she had failed to adduce any evidence that the deceased used due care and did not bring about the injury by his own act or negligently contributed thereto; in all of which respects the respondent failed to come within the terms of the statute, Section 2948, Volume 3, Code of 1922, under which, together with Section 2950, she brought her action. *526 “II. That the Court erred in refusing appellant’s motion for a directed verdict in its favor made at the conclusion of all of the testimony upon the grounds, appearing in the record, that no reasonable inference can be drawn from the testimony other than that the load of the deceased exceeded the ordinary weight and that he negligently contributed to his injuries by failing to inspect the bridge and satisfy himself of its safety, by driving on the edge instead of the center of the bridge, and by failing to release the clutch of the tractor, all of which were in violation of undisputed warnings and instructions given him by his employer, the appellant, for his own safety and also conclusively shown by the testimony to be in violation of the standards of due care under the circumstances.” A reference to the pleadings shows that the defendant admits that the said J. H. Chewning, at the time of the occurrence in question, was in the employ of the defendant, Clarendon County, as. driver. and operator of a large tractor of the weight alleged, the property of the defendant; that he was under the orders and direction of the supervisor and county board of commissioners of said county, and at the time and place when he received the injuries that caused his death was operating the said tractor in pulling a machine plow, the plow at the time being opr erated by one Henry Blackmon, who at the time was also in the employ of the defendant, and that the plow was being operated, as aforesaid, for the purpose of repairing the public road or highway in the said county ¿leading from Davis Station to Davis Crossroads, which road constitutes a part of the public road system of the said County of Clarendon. It is further admitted that it was the duty of the defendant county “to keep the road properly worked and the bridges thereon safe and in proper repair,” including the road in question; and that the plow and tractor being used .on said road at the time were owned by the defendant. The defendant also admits that the deceased was injured in attempting to *527 drive the said tractor over the said bridge, at the time and place alleged by the plaintiff, and that as a result of the injuries so received he died, leaving as his sole surviving heirs at law and distributees his widow, Marian Louise Chewning, who has heretofore duly qualified as administratrix of his estate, and his three infant children, named in the complaint, ages ten years, seven years, and five years, respectively, the action being brought by the plaintiff in her representative capacity. There was testimony introduced from which it may be reasonably inferred that the said J. H. Chewning went upon the bridge in question in the discharge of his duties, and that the injury which resulted in his death was received while in the discharge of his duties as an employee of the defendant; that the tractor so used on that occasion was purchased by the county for the purpose which it was being used, repairing the public highway of said county leading from Davis Station to Davis Crossroads, and in the performance of that work it was necessary to cross the bridge spanning the stream that crossed the said road, so as to repair the whole road, and it was, therefore, necessary for the said J. H. Chewning to drive the tractor upon the said bridge. It may be reasonably inferred from the testimony that the said J. H. Chewning in driving the tractor upon the bridge did no more and no less than the average and reasonably prudent man would be expected to do on such an occasion. Such may be said of his actions when the bridge gave way. It is the contention of the defendant that, the deceased caused his injury by failing to inspect the bridge before driving upon it with an overload, failure to procure a lighter tractor for crossing the bridge, and failure to release the clutch of the tractor when the accident happened; and, also, by driving on the side of the bridge and placing too much of the weight on the side of the bridge; that he should have followed his instructions and have adjusted the trailing machinery (the machine plow) to follow the center and have driven on the center of the bridge. It *528 is the contention of the defendant that the failure to do these things caused the injury to the deceased which resulted in his death, “or at least negligently contributed thereto as the proximate cause without which said injuries would not have occurred.” The defendant offered testimony in support of these contentions, but as we view the case these questions were questions for the jury, even under the defendant’s testimony. Furthermore, there was other testimony and circumstances in the case to be considered which in our opinion made a case for the jury. There was testimony introduced which, in effect, tends to show that while the deceased was on the said bridge attempting to drive the said machinery across the same for the purpose of repairing the county’s highway on the other side of the bridge, in performance and in the discharge of his duties, some of the timbers of the bridge broke and the bridge gave way, throwing the deceased into the water below and the tractor upon him, thereby seriously injuring him, which injuries caused his death a day or two afterwards; that while the defendant knew how to operate the tractor in question for the purpose of pulling the machine plow being used in the repair of the road, shaping up' the dirt, he had no knowledge of the construction, repair, or maintenance of bridges. From the testimony the jury might also reasonably infer that the deceased had little or no knowledge of the strength of the bridge in question, whether it was sufficient for driving the said tractor across it or not. Further, as contended by respondent, under the testimony and circumstances of the case, such knowledge and duties might reasonably be presumed to have been intrusted to the county supervisor and other officers of the said county. There was also testimony tending to show that the timber of which the bridge in question was constructed was not of sufficient strength to be used in the construction or repair of the bridge and that some of the timber was in a rotten or decayed condition, from which fact negligence on the part of the county might reasonably be inferred. *529 The appellant emphasizes the fast that the tractor in question was of considerable weight and contends 'that under the proof the plaintiff could not recover for the reason that the weight of the vehicle driven on the bridge by the deceased, J. H. Chewning, exceeded the ordinary weight, and in this connection calls attention to Section 2948, Vol. 3, Code of 1922 (as amended by Act April 14, 1925 [34 St. at Targe, p. 287]), and Section 2950. The plaintiff alleged, in substance, that the tractor in question, which had been purchased and secured by and for the defendant for the purpose of using the same in repairing and keeping up its roads in said county, including the road in question, weighed about six tons, but further alleged that the same, the load that the plaintiff’s intestate attempted to drive over the said bridge, did not exceed the ordinary weight, and there was testimony tending to prove this allegation. The exact weight of the tractor was not established, but some of the testimony tends to show its weight to be six tons, while other of the testimony was to the effect that its weight was five tons. The witness Elbert Davis, who testified in behalf of the defendant, stated that it was called a five-ton tractor and that was supposed to be its weight. This witness also testified that he had driven tractors for a period of eight or ten years and had driven this particular tractor about three months. The same tractor, under another driver, employed by the said county, was driven over the road in question a few days prior to the accident. It also appears from the testimony that this tractor was about the usual size in use in that locality. A number of tractors were used in that section. At least, there was some testimony from which such inference could reasonably be drawn. The witness, P. H. Grumble, who testified for the plaintiff, testified to the effect that this tractor was not over the usual size. He also testified, referring to the tractor in question: “Q. Is it heavier, you think, than Coca-Cola trucks heavily laden? A. No, sir, I do not think. *530 “Q. What about lumber trucks? A. Plenty of lumber trucks just as heavy as the tractor when they are loaded with logs and lumber. “Q. Is this a public road from Davis Station? A. Public Highway.” When,asked what the ordinary load was for people using the road in question, after giving this description of the traffic on said road, this witness stated: “Oh, there is all kinds of loads. Those Coca Cola trucks weigh 6,000 or 7,000 pounds, I think, outside of the weight of the truck.” And when asked how much the truck would weigh, he stated: “Those big Mack trucks would weigh 2,800' to 3,000 pounds.” From this the jury might reasonably infer that the trucks passing over the bridge, including the freight they carried, weighed as much as five tons, the same weight as the tractor, according to some of the witnesses. While the witnesses did not undertake to state the weight of a truck loaded with logs, in my opinion the jury would be warranted in applying their knowledge to the weight of such loads and reasonably reach the conclusion that the tractor in question was no heavier than the trucks loaded with logs, lumber, etc. It appears that the road where the plaintiff’s intestate was injured, and from which injury he died, was open for all kinds of traffic. The traffic thereon was not limited, but this road was, according to some of the witnesses, a public highway and over which “plenty” of trucks passed which were as heavy as the tractor in question. The road was open and used by lumber trucks, log trucks, and Coca Cola trucks, as well as automobiles and wagons. At least this is a reasonable inference to be drawn from the testimony. In my opinion the jury was warranted in reaching the conclusion that the tractor referred to, which constituted the “load” involved in this case did not exceed the ordinary load under the meaning of the statute referred to, and, therefore, the trial Judge very properly refused defendant’s motions for a nonsuit and direction of a verdict on this ground. *531 The remaining exceptions, 3, 4, 5, 6, 7, 8, and 9, which will be reported with the case, raise questions with reference to his Honor’s charge to the jury. I do not consider it necessary to pass upon these exceptions separately, or to enter into a full discussion of the same, but deem it sufficient to state that when the questions raised by these exceptions are considered in the light of the entire charge, in my opinion, no error is apparent, and certainly there was no prejudicial error. Appellant’s counsel emphazises the allegations of error charged under the sixth exception, which exception reads as follows: “That the Court erred in refusing the appellant’s seventh request, that if the accident should have been reasonably foreseen in the operation of the tractor over County roads and bridges then the jury should find for the defendant as a worker assumes the ordinary risks of his employment and the employer is not liable for damages from such risks for the reason that such is an accurate statement of the law and applicable to the issues of this case and the appellant must, of necessity, have been prejudiced by the refusal of it.” The request to which reference is made in this exception was presented to his Honor, the trial Judge, by defendant’s counsel, along with a number of other written requests, before his Honor charged the jury, and during the course of the charge his Honor passed upon defendant’s requests in the order presented, the request in question being the last one on the list of requests presented, and, so far as the record discloses, no reference was made to it. Evidently the presiding Judge inadvertently overlooked it. Under such circumstances, if the defendant considered it important the Court’s attention should have been called to it, and the defendant having failed to do so, the exception is not well taken-. Furthermore, when the whole charge is considered in connection with the testimony in the case, I am satisfied that the defendant has no ground for complaint. *532 As a majority of the Court concur in this opinion, it becomes the opinion of the Court. The judgment of the lower Court, therefore, is affirmed. Mr. Chiee Justice Brease concurs in result. Mr. Justice Stabrer and Mr. Acting Associate Justice John I. Cosgrove concur.