McFail v. Barnwell County

The opinion of the Court was delivered by Mr. Chile Justice McIver. This was an action brought by plaintiff to recover damages for injuries alleged to have been sustained by the negligence of the officers charged with the duty of keeping in repair a certain bridge within the limits of the county of Barnwell at the time the disaster occurred, but subsequently cut off from that county and embraced within the limits of Bamberg County. The case came on for trial before his Honor, Judge Benet, and a jury in the Court of Common Pleas sitting for the county of Bamberg. The jury having rendered a verdict in favor of plaintiff, and judgment having been entered thereon, the defendant appeals from the several grounds set out in the record; and as all these grounds impute error to the Circuit Judge in his charge to the jury, it is proper that the charge of the Judge set out in the “Case,” together with the exceptions thereto, should be incorporated by the reporter in his report of this .case. We do not propose to consider the exceptions seriatim, as they all, in different forms, impute error to the Circuit Judge in his instructions to the jury as to what negligence on the part of the plaintiff would bar a recovery in an action of this [302] kind. There can be no doubt — in fact, it is conceded — that this action is based entirely upon the provisions of the act of 1892- — 21 Stat., hi, which has been incorporated in the Rev. Stat. of 1893 as sec. 1169, in the following language: “Any person who shall receive bodily injury or damage in his person or property through a defect or in the negligent repair of a highway, causeway or bridge, may recover, in an action against the county, the amount of actual damages sustained by him by reason thereof: Provided, Such person has not in any way brought about such injury or damage by his own act, or negligently contributed thereto. If such defect in any road, causeway or bridge existed before such injury or damage occurred, such damages shall not be recovered by the person so injured, if his load exceeded the ordinary weight: Provided, further, That such county shall not be liable unless such defect was occasioned by its neglect or mismanagement.” Inasmuch as it was the settled law of this State, at least, that no action of this kind could be brought against a county, which is a mere government agency, established for public purposes, until such right of action was conferred by statute (Young v. City of Charleston, 20 S. C., 116, and the cases cited therein, and Walker v. Chester County, 40 S. C., 342), it follows necessarily that a plaintiff in bringing such action must conform to the requirements of the statute conferring such right of action. Walker v. Chester County, supra. Hence, to maintain this action, it was necessary for the plaintiff not only to allege and prove that the injuries of which he complains against the county were “occasioned by its neglect or mismanagement,” but also that he “has not in any way brought about such injury or damage by his own act, or negligently contributed thereto.” If, therefore, the injury complained of was in any way brought about by the negligence of the plaintiff, or if he negligently contributed thereto, then the plaintiff, under the express terms of the statute, could not recover. The legislature, by the use of the language above quoted, manifestly intended to declare that in either one of two contingencies the plaintiff could not [303] recover, ist. If the injury was in any way brought about by his own act. 2d. If he negligently contributed thereto. Now if the statute had stopped after declaring the first one of these two contingencies, then possibly the conclusion might have been that the negligence of the plaintiff, in order to bar a recovery, must be the efficient cause of the injury or, to use the language of the Circuit Judge, must be the immediate proximate cause of the injury, as the words “brought about” would seem to imply. But the statute does not stop there, but goes on to declare another contingency upon which the plaintiff’s right of recovery would be barred — if he negligently contributed thereto. The use of the word “contributed” necessarily implies that there was another cause to which the plaintiff’s negligence might contribute; and although plaintiff’s negligence might not alone be sufficient to cause the injury, yet if it contributed to some other cause — for example, the defendant’s negligence — then the plaintiff could not, under the second contingency" declared in the statute, recover. It seems to us, therefore, that the Circuit Judge erred in using the following language to the jury: “You will inquire whose negligence caused the injury, and if you are satisfied that the plaintiff’s negligence was the proximate cause of the injury, then the defendant must not be held liable, even though to a certain extent negligent. So if you are satisfied that the injury resulted immediately from the .defendant’s negligence, then the defendant would be held liable in damages, even though to a certain degree the plaintiff has been negligent.” The case of Wragge v. Railroad Co., 47 S. C., 105, may be cited in support of the foregoing views. In that case the action was brought under a special statute (sec. 1692 of Rev. Stat. of 1893), which provided that if a person was injured by collision with a railroad train at a crossing, and it appears that the corporation had neglected to give the signal required at such crossing, and that such neglect contributed to the injury complained of, the corporation shall be liable for all damages caused by the collision. One of the questions made in the case was whether [304] it was error to refuse to charge as requested, that in order to render the defendant liable, the jury must conclude that the failure to give the required signals was the proximate cause of the injury sustained. The Court held that there was no error in such refusal, using the following language: “All that the statute requires is that the neglect to give the prescribed signals shall contribute to the injury; which, in our judgment, is a very different thing from saying that such neglect must be the proximate cause of the injury. * * * Now, under the express terms of this statute (and we may say the same of the statute under consideration in the present case), the only inqury, so far as the point we are now considering- is concerned, is, not whether the neglect to give such signals was the proximate cause of the injury, as might have been the case apart from the provisions of this statute, but the inquiry is, in the language of the statute, whether “such neglect contributed to the injury.” And the Court, after showing that one of the settled rules for the construction of a statute is to give the words used therein their ordinary and popular signification, unless there is something in the statute requiring a different interpretation, proceeds as follows: “Now, as it is apparent that there is nothing in the statute here under consideration (and the same may be said of the statute involved in the present case) to indicate that the word 'contributed' was used in any other than its ordinary and popular signification, the only inquiry is what is such signification? This word is of frequent occurrence in the textbooks and in the decided cases where it most frequently appears in questions of contributory negligence. The foundation upon which the doctrine that contributory negligence on the part of the plaintiff will constitute a defense to an action to recover damages for.an injury caused by the negligence of another, rests, is, that when such injury may be parity the result of the defendant’s negligence and partly the result of the plaintiff’s own negligence, the Court will not undertake to graduate or apportion the damages according to the contribution of either side, and will leave the parties as [305] they found them, repels the idea that the words ‘contributed’ or ‘contributory’ ever has been understood to bear such an interpretation as that claimed for it by the appellant (that is, that it was the immediate or proximate cause of the injury). On the contrary, it seems to us that in the ordinary and popular signification of the term, one thing is understood to contribute to a given result, when such thing has some share or agency in producing such result, and it is not understood to convey the idea that such thing was the efficient cause of such result, in the sense that, without it, such result would not have occurred.” To the sanie effect, see the very recent case of Cooper v. Railway Co., 56 S. C., 91. It seems to us, therefore, that the Circuit Judge erred in instructing the jury that the plaintiff’s negligence would be no defense unless it was the efficient, immediate or proximate cause of the injury complained of, and that this error permeates all that portion of his charge with reference to contributory negligence. The judgment of this Court is, that the judgment of the "Circuit Court be reversed and the case be remanded to that Court for a new trial.