Opinion
13286
December 3, 1931.
Before SHIPP, J., Clarendon, Fall Term 1928. Affirmed.
Action by Marion Louise Chewning, administratrix, against Clarendon County. From an adverse judgment defendant appeals.
The Judge's charge and appellant's exceptions were as follows:
JUDGE'S CHARGE TO JURYNow, when you go in the jury room you take this complaint and read it over for yourselves. Then you take the answer of the defendant and read that, because out of these two papers the issues of the parties are made up, and I am not going to read them to you, but it is very important that you read them, because I may not state the case to you as fully as it is stated here.
Mrs. Chewning brings this action as the administratrix of the estate of J.H. Chewning, deceased, against Clarendon County, and it is alleged that J.H. Chewning was employed by the County of Clarendon in operating a tractor, and that the tractor was engaged in pulling a plow operated by one Blackmon, and that it was put at work to work on the road between Davis Station and Davis Cross Roads, and that when it came to Potato Creek Bridge, the bridge gave way and that Chewning was killed. Now, they allege that the death was — that the cause of the death was because the bridge over Potato Creek was defective; that the timbers were not placed close enough together; that the timbers were defective and sappy, and they say the county was negligent in — that the bridge was in this condition on account of the negligence of the County, in the particulars which they describe, which you will find in the eighth paragraph of the complaint. And they allege damages in the sum of $25,000.
Now, the defendant in its answer denies all acts of negligence on its part, and sets up several defenses. One of the defenses is that the plaintiff drove upon the bridge with a load that exceeded the ordinary weight, and that, therefore, under the statute, he is not entitled to recover, and they allege he was warned by his superior officer to go in the center of the bridge and not on the side, and to disengage the plow from the machine, and to allow the plow to follow directly behind the machine by shifting the gears; and you will find by the last part of the complaint — of the answer the different allegations of negligence charged against the plaintiff, which acts, they allege, contributed to his own injury as a proximate cause. And they admit that Mrs. Chewning is administratrix of the estate of J.H. Chewning.
Now, gentlemen, formerly, when a person was injured and death arose from the negligence of the county, no one was allowed to sue the county; no one had the right to sue until the Legislature passed an Act which allows a person to sue the county when death results from a defect on the roads and bridges of the county, due to the negligence of the county; and that suit must be brought by the administrator for the benefit of the wife and children, and they allege these are the wife and children of the deceased — we will have no trouble about the way the suit is brought.
Gentlemen, I am going to read the statute, and then define to you — probably I better explain negligence before I start. Now, negligence is a relative term. You have to look at the situation of the parties. Negligence is defined to be the failure to exercise due care under the circumstances. It is the failure to do that which a person of ordinary reason and prudence would have done under the same circumstances, or the doing of that which a person of ordinary reason and prudence would not have done under the circumstances. So you have to see what the circumstances are before you determine whether the acts were negligent or not.
I charge you that the county, in building bridges, and maintaining the bridges of the county, it is the duty of the county to keep the bridges reasonably safe for the purposes for which the bridge is used.
Now, the measure of the county's duty is ordinary care to provide such a bridge that is reasonably safe for the traffic that may reasonably be anticipated, having due regard to the character of the travel and the purpose for which the highway may be used and the danger. The county, in building a bridge at the place they build it, must take into consideration the purpose for which the bridge is to be used. They have got to provide a bridge that is reasonably safe for the use of the public, considering the sort of traffic that crosses it, and the ordinary travel to be anticipated. One place may require a stronger bridge than others. It must be reasonably safe for the traffic that may reasonably be anticipated. Not only to build it reasonably safe, but make an inspection of it and keep it in a reasonably safe condition for the use of the traveling public. It is the duty of the public, in using the bridge, they are under a duty to use ordinary care in the manner in which they use the bridge, and to take into consideration the nature of the load that they carry. They have got to use ordinary care themselves. You keep that in mind as I charge you, to which I will refer later.
I am going to read this statute to you. The Legislature, now, provides this. It alludes to injury here, but by another section it includes death:
"Any person who shall receive bodily injury or damage in his person or property through a defect or in the negligent repair of a causeway, or bridge, or of any ferry operated by the county, may recover in an action against the county the amount of actual damage 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."
In that connection, now, on this phase of it, says this:
"The jury is charged that the provision in the Act which provides: `Such person has not in any way brought about such injury or damage by his own act,' means that in order to bar a recovery under this contingency, the act of the person injured must be the efficient cause of the injury, namely, the efficient and proximate cause thereof."
I charge you that as to that part of it which says it must not be brought about by his own act. The statute goes further and says, "or negligently contributed thereto." The plaintiff must not only show that his negligence did not bring about the injury, but he must go further and show that he did not negligently contribute to the injury. The burden of proof is on the plaintiff to show that he did not bring it about by his own negligence and that he did not negligently contribute thereto. In other words, when you hear both sides of the case you have got to believe now that the negligence of the county was the sole cause of the injury to the plaintiff, if he was injured, and the plaintiff must show, by the greater weight of the evidence, that the injury was caused solely by the negligence of the county, and that he didn't bring it about, and didn't even contribute to it. Another provision of the statute is this:
"If such defect in any road, causeway or bridge, or in any ferry operated as aforesaid, existed before such injury or damage occurred, such damage shall not be recovered by the person so injured, if his load exceeded the ordinary weight."
Now, gentlemen, that is largely a question for the jury. You have got to take into consideration now the purpose for which the bridge was built, and the county now — the county is charged, as I have told you, with building a bridge to provide for such travel on the road as ordinary care would provide. I couldn't tell you how many tons would violate this statute, but it is a question for the jury. So, I charge you now that if it was a defective bridge, and the defect existed before the accident, the plaintiff could not recover if his load exceeded the ordinary weight under the law as I have already charged you. The statute provides further:
" Provided, further, That such county shall not be liable unless such defect was occasioned by its neglect or mismanagement."
The plaintiff has got to show you that the defect was caused by the neglect or mismanagement of the county. A bridge may be defective and yet the county may not be liable. It is not sufficient to show that the bridge was defective, unless he shows you it was by the neglect or mismanagement of the county; that they did not use the proper care in erecting it, or the proper care in keeping it up. I think that is all of the statute you are concerned in.
Now, if the plaintiff in this case — if the plaintiff has proved to you — and the plaintiff must prove, in order to recover against the county, he must prove that the bridge was defective as alleged in the complaint, and that the defects there were occasioned by the negligence of the county.
Now, I charge you, Mr. Foreman and Gentlemen, that you can't presume negligence simply because a bridge gives way. The plaintiff must show you not only that the bridge gave way, but he must go further and show you that it gave way due to some defect in the bridge due to the negligence of the county. In other words, a person injured by the act of the county, has got to show negligence. The only case I know of where negligence is presumed from the injury is where a person is injured while a passenger on the railroad. All he has to show in that case is that he was a passenger, and that he was hurt by the instrumentality of the railroad. In that case negligence is presumed, but that is not the rule in this case. In this case the plaintiff must show you that that bridge fell in, and that it fell in due to some defect due to the neglect or mismanagement of the county; that she didn't bring it about by her own negligent act or that she did not negligently contribute thereto. If she does that she is entitled to recover actual damages, about which I will charge you directly.
Now, counsel has asked me to charge you certain requests. I can't comment on the facts in the case, consequently I can't charge some of these requests. Some of them I will charge you.
1. "If you find a verdict for the plaintiff it may be in any smaller amount than that sued for. The amount named in the complaint is a limit beyond which you cannot go, but you can find any lesser sum."
Of course it is for you to say from the testimony, if you find for the plaintiff, what to give her. You can't give more than the $25,000.00, but you can give as much less as you think proper.
2. "The county is not liable for damages as an individual, as you or I would be, but the extent of its liability to its citizens and others is fixed absolutely by the statute law of the State, concerning which I have and am instructing you; and your verdict must be in accordance with such statute as I explain it to you."
If she is entitled to recover, she is entitled to recover only under the terms of this statute.
3. "The burden of the proof is upon the plaintiff to prove by the greater weight or preponderance of the testimony that the death was occasioned by a defect in or negligent repair of the bridge caused by the neglect or mismanagement of the county; and then she is not entitled to a verdict against the defendant unless she proves by the preponderance or greater weight of the testimony:
"(a) That the weight of the load of the deceased, including the weight of his own body and that of the tractor, was not greater than the weight of the vehicle and load of the ordinary traveler along this and other similar roads."
I can't charge you about that now, as I have already charged you on the subject of weight. I charge you that the weight, including his own body, must not exceed the ordinary weight as I have already defined that to you. I modify that to that effect.
"(b) That the deceased did not in any way bring about his injury by his own negligent act or negligently contribute thereto."
I charge you that.
Now, he has asked me to charge you that —
"The burden is upon the plaintiff to prove that the load of the deceased, including the weight of the tractor, did not exceed the ordinary weight — the weight of usual loads and vehicles passing over the roads — and unless she has proven this by the preponderance or greater weight of the evidence, she is not entitled to a verdict from you, and you must find for the defendant."
I charge you that by adding, "Or the weight of such load as the county could reasonably anticipate would use the road."
5. "If you find that the county was guilty of neglect or mismanagement in the construction or repair of the bridge, if the plaintiff has satisfied you of that by the preponderance or greater weight of the testimony, yet she cannot recover anything of the defendant if the deceased negligently contributed by any act or omission of his to his injury. If he did anything, or omitted to do anything, which a reasonably prudent man for his own safety would not have done, or would have done, and this act or omission combined with the neglect of the county and contributed to the injury as a proximate cause thereof, the plaintiff is not entitled to a verdict and you will find for the defendant county. And the plaintiff has the burden of proving that the deceased did not so contribute by his act or omission to his injury — she must so prove by the greater weight or preponderance of the testimony before there is any liability upon the defendant.
"So you will note that the burden of proof is upon the plaintiff, both to prove her alleged case and disprove the alleged contributory negligent acts of the deceased, set up as defenses in the answer of the county. These are requirements of the law and you cannot find a verdict for the plaintiff unless she has met them by the preponderance or greater weight of the testimony."
I charge you that. I charge you now if the defendant's testimony tends to show that the plaintiff brought about the injury by his own act, or that he negligently contributed thereto, the plaintiff would have to rebut that and on the whole case show that he did not bring about the injury by his own act, or that he did not negligently contribute thereto.
The other request is:
6. "If the plaintiff has proven by the greater weight or preponderance of the testimony that the deceased's death was caused by a defect in or negligent repair of the bridge occasioned by the neglect or mismanagement of the County, she cannot yet recover a verdict if the deceased contributed thereto negligently by any act or omission which ordinary care required of him, and before you can render a verdict for the plaintiff she must establish by a preponderance of the testimony that the deceased did not contribute to his injury by negligently violating or failing to observe reasonable instructions and warnings given him by the defendant for his own safety."
I cannot charge you that now, but I will charge you in regard to the question of warning — I can't say whether there was any warning given or not, but I charge you that when a person goes upon a bridge he has got to use due care on his part not to be injured, and to determine that you must take into consideration all the testimony you have heard here. You find out the situation by taking all the testimony, and I tell you now that he has got to act as a person of ordinary care and prudence would have acted under the circumstances in crossing the bridge. If there is a safe way to cross the bridge and an unsafe way, and a person is put on notice of the safe way and the unsafe way, and he voluntarily chooses the unsafe way, then he cannot recover, because he would be assuming the risk of taking the unsafe way, when there is a safe way to do it. When a person attempts to cross a bridge, he must act as a person of ordinary care and prudence would have acted. It is for you to say how he should have acted from the testimony in the case, whether he exercised ordinary care. If a person is driving a tractor — if he has a heavy load, he must take into consideration all the circumstances surrounding in the manner he crosses the bridge, and he should act as a person of ordinary care and prudence should have acted. I can't tell you whether he should have obeyed the warning or not, if he had warning; it is a question of ordinary care for you.
If he has proven by the greater weight of the testimony that he was injured — or if the plaintiff here has proven that she and those for whom she is suing, were injured by the death of J.H. Chewning, and that the death was caused by the negligence of the county in the particulars described in the complaint, and he has proved by the greater weight of the testimony that his own negligence did not bring it about, and that he did not negligently contribute thereto, it would be your duty to bring in a verdict against the county for such damages as you think she has sustained.
Now, where a person is injured by the wrongful act of another, the administrator can bring a suit for damages, and in this case if the plaintiff has made out her case by the greater weight of the evidence as I have already charged you, she is entitled to actual damages. You are confined in this case to actual damages, and as to the measure of damages, in a case of this kind if the plaintiff is entitled to damages, a jury may award such damages as they think proper in proportion to the injury sustained. I can't tell you anything as to that. You take into consideration the earning capacity of the deceased; how much in a pecuniary way has the wife and children? — how much have they lost in a pecuniary way? Well, to get at that, you take into consideration the earning capacity of the husband, the probable length of life, what they lost in a pecuniary sense, in the way of money; and also, where a wife and children are deprived of the husband and father, take into consideration the comfort and companionship he would have given the wife, and the comfort and companionship he would have given the children; take into consideration what any normal person would suffer under the same circumstances, and give such damages as you think proper in proportion to the injury sustained.
"If you find that the plaintiff is entitled to recover in this case, then I charge you that she would be entitled to recover the monetary loss sustained by the widow and children in the way of clothing, education and support, and, in addition to all this, the jury may take into consideration any injury which the parties may have sustained by reason of mental suffering on account of the death of the deceased, and, also, the damages, if any, which they have sustained by loss of his companionship as a husband and as a father."
That is what our Supreme Court says is the measure.
So now, gentlemen, I want to say to you that you or I have no right to consider the question of sympathy. You have no right to give a person any sum of money on account of sympathy. You have to rid your minds of all sentiment of that sort. When a person brings a suit to recover money she must show by the testimony in the case that she is entitled to the money under the testimony and under the law as given to you by the Court.
If you find that the plaintiff is entitled to recover, the form of your verdict will be, "We find for the plaintiff so many dollars," writing it out in words and not in figures and sign your name as foreman. If, under the testimony, you don't think the plaintiff is entitled to recover anything in the case, say, "We find the defendant," and sign your name as foreman.
Mr. Epps: The second defense is struck out, your Honor, in the answer.
The Court: Mr. Foreman, there will be no contention now as to the second defense, because it has been withdrawn, so just give your attention to the other defense in the answer.
Now, the plaintiff has to make out her case, as I have charged you, by the greater weight or preponderance of the testimony. That doesn't mean that she has to put up more witnesses than the other side. You are the judges of the witnesses in the case, and you are the judges of the facts here. She must satisfy you by the greater weight of the testimony that her contentions in the case are correct or true. If you are not so satisfied, or if there should be an even balance so that you cannot say where the greater weight of the testimony lies, say, "We find for the defendant." The plaintiff has to prove her case by the greater weight of the testimony. If she fails to do that, bring in a verdict for the defendant.
EXCEPTIONSI. It is respectfully submitted that the Court erred in refusing appellant's motion for an order of nonsuit made at the close of respondent's evidence upon the grounds, set forth in the record, that the respondent 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 contribute 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.
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.
III. That the Court erred in refusing the third request to charge of the appellant, that the plaintiff is required to prove that the weight of the load of the deceased, including the weight of his own body and that of the tractor, was not greater than the weight of the vehicle and load of the ordinary traveler along this and other similar roads — as such is a correct statement of the law applicable to the facts developed in this case and the appellant was necessarily prejudiced by the Court's failure to so instruct the jury.
IV. That the Court erred in its modification of the appellant's fourth request to charge, that the burden was upon the plaintiff to prove that the load of the deceased, including the weight of the tractor, did not exceed the ordinary weight — the weight of usual loads and vehicles passing over the roads, for such is a correct statement of the law, here applicable; and the appellant was necessarily prejudiced by the addition of the Court, "such * * * load as the county could reasonably anticipate, * * * " for the reason that the County is not required to anticipate loads above the ordinary weight.
V. That the Court erred in refusing to charge the appellant's sixth request that to entitle the plaintiff to a recovery she must establish by a preponderance of the testimony that the deceased did not contribute to his injury by negligently violating or failing to observe reasonable instructions and warning given him by the defendant for his own safety; and the Court also erred in its comments upon the request, as it was not contradicted that instructions and warnings were given; hence the statement of the law was applicable and the Court's refusal and comments necessarily prejudicial to appellant.
VI. 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.
VII. That the Court erred in instructing the jury that a bridge "must be reasonably safe for the traffic that may reasonably be anticipated," for the reason that the county authorities have only to anticipate ordinary loads and not extraordinary ones such as the tractor operated by the deceased, but as the tractor was the property of the county the jury must have understood from this instruction that the county was required to keep its bridge safe for this most extraordinary load, for it could not but anticipate its own load.
VIII. That the Court erred in instructing the jury that, "it is the duty of the county to keep the bridges reasonably safe for the purposes for which the bridge is used," for the duty is to maintain reasonably safe for ordinary traffic and not for extraordinary loads, as was that of the deceased.
IX. That the Court erred in instructing the jury, that "if the defendant's testimony tends to show that the plaintiff brought about the injury by his own act, or that he negligently contributed thereto, the plaintiff would have to rebut that and on the whole case show that he did not bring about the injury by his own act, or that he did not negligently contribute thereto," for the reason that under the law governing this case the burden was upon plaintiff to negative by proof as well as by allegation contributory negligence on the part of her intestate without regard to what the defendant's testimony tends to show; and the Court by his interpretation removed the distinction between this case and that of an ordinary negligence case, to the prejudice of the appellant.
Messrs. Dinkins Stukes for appellant, cite: Burden on plaintiff in suit against county: 124 S.C. 288; 177 S.E., 533; 40 S.C. 342; 18 S.E., 936; 93 S.C. 82. County not liable for damage caused by unusual reason: 13 R.C.L., 1375; 4 R.C.L., 223, 229; 9 C.J., 480; 42 L.R.A. (N.S.), 1036; 16 L.R.A., 143; 15 A.L.R., 770. Liability will not be increased by knowledge or acts of officials: 27 S.C. 419; 33 S.C. 787; 34 S.C. 141; 13 S.E., 318. Assumption or risk: 104 S.C. 116; 28 S.E., 469; 72 S.C. 237; 51 S.C. 237; 72 S.C. 264; 51 S.E., 882; 84 S.C. 283; 66 S.E., 298; 102 S.C. 276; 86 S.E., 675; 233 U.S. 504; 138 S.C. 241; 136 S.E., 234.
Messrs. Epps Levy and J.W. Wideman for respondent, cite: Size of load was question for jury: 81 S.C. 478. Bridge should be strong enough to stand traffic which it would be expected to bear: 132 S.C. 426; 124 S.C. 288; 94 S.E., 6; 6 N.W., 787. Negativing evidence of negligence is proper: 120 S.C. 501; 83 S.C. 551. Question of deceased's negligence for the jury: 85 S.C. 466: No assumption of risk: 139 S.C. 19; 130 S.C. 458; 112 S.C. 541.
December 3, 1931. The opinion of the Court was delivered by
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 was 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 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 22d 1928, and then died from the effects of said injury, and all to the damage of those for whose benefit this 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 DEFENSE
"1. Admits the allegations of paragraph 1 of said complaint and, upon information and belief, the allegations of 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 DEFENSE, ALLEGES
"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 DEFENSE, ALLEGES
"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 was 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 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, ALLEGES
"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 respondent 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.
"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 operated 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 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 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.
The appellant emphasizes the fact 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 Large, 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.
"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.
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 emphasizes 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.
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. CHIEF JUSTICE BLEASE concurs in result.
MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE JOHN I. COSGROVE concur.
This is an action under Section 2948 of the Code of 1922 (as amended by Act April 14, 1925 [34 St. at Large, p. 287]), and Section 2950, for damages on account of the alleged wrongful death of the plaintiff's intestate, John H. Chewning, her husband, resulting from the breaking in of a bridge of the county over which intestate was driving a tractor owned by the county and operated by the intestate as an employee of the county and under the direction of a superior officer.
The complaint alleges that the collapse of the bridge was due to the defective condition of the timbers and the negligence of the county in not maintaining it in a proper state of repair in view of the known use of the bridge by the county. It is also alleged that the injury received by the intestate was not caused by his contributory negligence and that the load did not exceed the ordinary weight although it is alleged that the tractor weighed "about six tons," 12,000 pounds.
In the defendant's answer it was admitted that the tractor weighed about six tons as alleged in the complaint; that such weight "was great and unusual and far in excess of the ordinary weight"; that the deceased was experienced with tractors and had been warned by the appellant of the danger of crossing bridges, instructed never to go upon one except after careful inspection as lighter machinery could be used, and then to drive over the center of the bridge in order to distribute the great weight.
The answer further denied all allegations of the complaint as to defects and care, and alleged as defenses various acts of contributory negligence and that the deceased had assumed all ordinary risks of his employment of driving a heavy tractor on county roads.
The evidence showed that the county had purchased a tractor for use in drawing a plow used in repairing a certain highway; that in the course of the operation the deceased, employed to drive the tractor, was directed to cross the bridge in question, and that while doing so the bridge collapsed causing his fall and death; that some of the timbers of the bridge were defective and that sufficient repairs had not been made upon the bridge to ensure the safe passage of the tractor over it; that the tractor weighed at least 5 tons, 10,000 pounds; that it was the largest that had ever been seen in that vicinity and the weight of an ordinary load upon wagon or other vehicle was 1,000 pounds.
At the close of the testimony for the plaintiff the defendant moved for a nonsuit, and at the close of all of the testimony for a directed verdict, both of which were refused. We do not deem it necessary to consider any of these grounds except the ground that the plaintiff had not shown that the load upon the vehicle operated by the deceased did not exceed the ordinary weight.
The verdict of the jury was in favor of the plaintiff, for $4,250.00, and from the judgment entered thereon the defendant has appealed.
It is to be remembered that the liability of a county for the negligence of its officers and agents in connection with the construction, maintenance, and repair of its highways and bridges, is exceptional, and specifically limited by statute to injuries within a prescribed sphere. There was no liability at common law on account of injuries so received; the statute alone creates it; and to the statute, as construed by the decisions of this Court, resort must be had to determine whether an injury sustained under certain circumstances, comes within the purview of the statute.
The statute, Section 2948, as amended, is a process in the evolution of the law. The act of which it is a reproduction was intended to provide a remedy (under certain prescribed conditions) which did not theretofore exist; to remove the immunity which a county enjoyed under the common law, from liability in damages, on account of an injury sustained by a person "through a defect in the repair of a highway," due to the negligence of the official representatives of the county.
A municipal corporation, a county for instance, being a governmental agency, charged with the duty of keeping its avenues of travel in proper repair, is not liable, in a civil action, for damages on account of injuries sustained in consequence of a breach of this duty on the part of the agents of the corporation in the absence of a statute imposing such liability, and only then upon a substantial compliance with the requirements and conditions upon which such liability is predicated. Bryant v. City Council, 70 S.C. 137, 49 S.E., 229; Gibbes v. Beaufort, 20 S.C. 218; White v. City Council, 2 Hill, 572; Coleman v. Chester, 14 S.C. 290; Black v. Columbia, 19 S.C. 412, 45 Am. Rep., 785; Young v. City Council, 20 S.C. 116, 47 Am. Rep., 827; Dunn v. Barnwell, 43 S.C. 398, 21 S.E., 315, 49 Am. St. Rep., 843; Bramlett v. Laurens, 58 S.C. 60, 36 S.E., 444.
In Randal v. Highway Department, 150 S.C. 302, 148 S.E., 57, 58, it was held in the Circuit decree of his Honor, Judge Johnson, which was adopted as the opinion of the Court: "In this State neither the commonwealth, nor any of its political subdivisions, is liable in action ex delicto unless made liable by express enactments of the General Assembly, except where the acts complained of, in effect, constituted a taking of private property for public use without just compensation. Young v. City Council of Charleston, 20 S.C. 116, 47 Am. Rep., 827; Mullinax v. Hambright, 115 S.C. 22, 104 S.E., 309; Faust v. Richland County, 117 S.C. 251, 109 S.E., 151; Derrick v. Columbia, 122 S.C. 29, 114 S.E., 857; Kneece v. Columbia, 128 S.C. 375, 123 S.E., 100."
As the Court says in Chick v. Newberry Co., 27 S.C. 419, 3 S.E., 787, 788: "Prior to its adoption, the disability * * * was general, and still remains as to all except such as are taken out by the act."
In that case it was held that a county was not liable for injuries caused by a defective flat boat on a ferry operated by the county commissioners, the Court declaring: "The act in question undertakes to enumerate the cases in which the right to sue the county is given, viz., for `defects in the repair of a highway, causeway, or a bridge.' This enumeration, as it seems to us, excludes matters not enumerated" — which illustrates with what strictness the statutory liability is limited. There it was conceded that the ferry connected the two termini of the highways at the river; that it was owned and controlled and operated by the county commissioners; that the flat boat was defective; and that injury resulted.
By the express provisions of the statute creating this exceptional liability, certain conditions to a recovery of damages are imposed:
1. It must be affirmatively shown that there was a defect in the highway or bridge;
2. It must affirmatively appear that the presence of the defect was "occasioned by its (the county's) neglect or mismanagement";
3. It must be alleged and affirmatively shown, contrary to the usual rule, that the injured person "has not in any way, brought about such injury or damage by his own act, or negligently contributed thereto";
4. It must be alleged and affirmatively shown that the load upon the vehicle operated by the injured person did not exceed "the ordinary weight."
Upon a review of the conflicting evidence in the case, it may be rightly concluded that there was some evidence tending to show that there were defective timbers in the bridge, which would be sufficient to carry that issue to the jury.
We think, too, that considering the work in which the county authorities were engaged, the repair of the highway, in which the officials made use of heavy tractors, which naturally were expected to cross the bridges of the highway, it was their duty to provide and maintain bridges for such anticipated use, of sufficient strength and condition. There was sufficient evidence of a failure to perform this duty, to carry the issue to the jury, if the defendant had been an ordinary tort-feasor. It was, as has been seen, a tort-feasor charged with liability, only under certain specified conditions, which of course had to be established. One of these conditions was that the injured person was, at the time, operating a vehicle carrying a load which did not exceed the ordinary weight.
The original Act was passed long before the coming of automobiles and tractors; manifestly it contemplated horse-drawn vehicles, carrying such loads as were common to that class of vehicles; the only other vehicles extant in those days were portable engines and threshing machines, if they could be considered vehicles; we have no doubt but that if one of these machines, weighing much more than the ordinary weight of loads, had crashed through a bridge, the loss would not have come within the terms of the statute, for it could not be said that the engine or thresher was of ordinary weight.
In 13 R.C.L., 375, it is said: "So a municipality is only called upon to make provision for carriages of ordinary width which people are accustomed to use, and while a person is at liberty to use the way with whatever vehicle he may see fit to drive upon it, which is fit for that purpose, if he uses one of unusual construction or of unusual weight, he cannot hold the municipality liable for accidents happening because of its unusual character, provided the highway is constructed for ordinary vehicles and would have been reasonably safe for them."
The original Act, with certain amendments, not germane to the present issue, has been reproduced in the Act of 1925, 34 St. at Large, p. 287, which contains the same condition, that the injured person cannot recover damages if his load exceeded the ordinary weight.
The plaintiff evidently appreciated the necessity of alleging compliance with the conditions imposed by the statute; it is alleged in the complaint, that the tractor weighed 6 tons, 12,000 pounds, and that the load, evidently the weight of the tractor, "did not exceed the ordinary weight." It seems to me that the allegations of the complaint conclusively show that the use of the tractor was for the temporary purpose of repairing the highway; an unusual and extraordinary use, certainly therefore not ordinary, in relation to travel, and that the weight was equally extraordinary. It appears impossible to hold that the passage of a vehicle weighing 6 tons could be considered an ordinary occurrence upon a country road. It is noticeable that there was not the slightest effort on the part of the plaintiff to establish the fact that the load was of ordinary weight.
Aside from the impression of an ordinarily intelligent man that the tractor did not constitute a load of ordinary weight, a witness for the plaintiff testified that the ordinary weight of a load in that community, over that bridge, was 10 sacks of guano, 2,000 pounds, one ton; that the presence of a tractor at that locality was an unusual thing; and that this particular machine was the largest and heaviest that he had ever seen. In view of the allegation in the complaint that the tractor weighed six tons, of the testimony of plaintiff's witness that the weight of the ordinary load was one ton, and of the utter absence of testimony on the part of the plaintiff that the load was of ordinary weight, I do not think that any other reasonable inference could be drawn than that the load was in excess of the ordinary weight.
Webster's International dictionary defines the adjective "ordinary" as "common; customary; usual."
In 46 C.J., 1132 "ordinary" in its adjectival use is defined with footnote citations of authority for each definition, as "* * * according to established order; accustomed; common; common in recurrence; conforming to general order; customary; established; methodical; normal; often recurring; regular; settled; usual; that which has been established and is customary."
Words and Phrases, First Series, Vol. 6, p. 5027:
"The word `ordinary,' a synonym of `regular,' is defined by Webster as methodical, regular, according to established order. Zulich v. Bowman, 42 Pa. (6 Wright), 83, 87. * * *
"The word `ordinary' is defined as common, usual, often recurring. Chicago A.R. Co. v. House, 172 Ill., 601, 50 N.E., 151, 153.
"Johnson assigns to the word `ordinary' the meaning of established, regular, common, usual. Crenshaw v. Slate River Co., 6 Rand. [27 Va.], 245, 263."
Midland Timber Co. v. Pegues, 93 S.C. 82, 76 S.E., 32, 34: The meaning of the word "ordinary" is defined as follows: "`Ordinary,' in the usual acceptation of the word, means `common,' `usual,' `common occurrence,' `usual practice.'"
In 4 R.C.L., 223, it is said: "A municipality is not bound to so maintain bridges as to make them absolutely safe; its obligation being merely to exercise ordinary care in keeping the bridges under its control in a safe condition for all usual and ordinary modes of travel and transportation of property over them."
Ibid. 239: "If, however, one transports across a bridge a load which exceeds the weight permitted by statute the insufficiency of the bridge does not give rise to any action."
9 C.J., 480: "As it is unnecessary that bridges shall be constructed to sustain unusual extraordinary, or unexpected loads, it follows that one who attempts to cross such a bridge with a load which is clearly of such nature, and which would subject the bridge to an unusual strain, is guilty of contributory negligence. So, too, if a statute prescribes a maximum weight to which a bridge shall be subjected, an injured party ordinarily cannot recover if his load exceeds such maximum."
42 L.R.A. (N.S.), 1036: "A statute having prescribed the weight which might lawfully be transported across a toll bridge, if it appears that the plaintiff's load exceeded such weight, and thereby the bridge was broken down, with injuries to the plaintiff, he is prohibited from recovering for such injuries. Dexter v. Canton Toll-Bridge Co., 79 Me., 563, 12 A., 547."
Com. v. Allen, 148 Pa., 358, 23 A., 1115, 1117, 16 L.R.A., 148, 33 Am. St. Rep., 830: "As a general rule, highways and bridges are constructed for ordinary use, in an ordinary manner, and not for an unusual or extraordinary use, either by crossing at great speed or by the passing of a very large and unusual weight. A township is not bound to do more than to so construct its bridges as to protect the public against injury by a reasonable, proper, and probable use thereof, in view of the surrounding circumstances, such as the extent, kind, and nature of the travel and business over them."
The following quotations are from English cases construing the terms "excessive weight" and "extraordinary traffic" in their general highway law and are found in 5 A.L.R. at page 770 et seq.
"The traffic is not the less extraordinary because it comes from timber grown on the adjoining lands, when the quantity hauled is unusual."
"Using traction engines to carry manure over a road used principally for ordinary farm traffic is `extraordinary traffic.'"
"So it is `extraordinary traffic' to employ a new plan of carting coal, taking a string of four or five carts at a time in the same track * * * or to employ a new manner of carting stone on the road in question, viz., by traction engines not usual there."
"Stone traffic, caused by the opening of a stone quarry, which had not been before carried over the particular road, is `extraordinary traffic,' though there had been stone traffic over other roads in the vicinity."
"That the needs of the district demand motor buses will not prevent their traffic from being `extraordinary traffic.'"
"A person by bringing in heavier and new kinds of vehicles cannot make the use of them ordinary traffic after a time, so that he can compel the authorities to provide for them as ordinary. * * * Nor can he make the hauling of bricks in heavy loads over an agricultural road not extraordinary. * * * And a quarryman was held liable for expenses where for seven years he had carted stone over a highway not before ordinarily used for that purpose."
"The standard is the ordinary traffic of the particular road, not the ordinary traffic of other roads in the district."
The appellant complains of a modification of the third request to charge. The request was as follows: "The burden is upon the plaintiff to prove that the load of the deceased, including the weight of the tractor, did not exceed the ordinary weight — the weight of usual loads and vehicles passing over the roads — and unless she has proven this by the preponderance or greater weight of the evidence, she is not entitled to a verdict from you, and you must find for the defendant."
The modification was: "I charge you that by adding: `or the weight of such load as the county could reasonably anticipate would use the road.'"
We think that the request was entirely in accord with the terms of the statute; the modification inserted an element that does not appear therein, namely, that the test was a reasonable anticipation by the county of a use to which the bridge might be put. The question of reasonable anticipation might have entered if the defendant had been an ordinary tort-feasor, but not when it was defending a specific statutory liability, the test of which was correctly stated in the request. The error is emphasized by the charge complained of in the seventh exception: "It is the duty of the county to keep the bridges reasonably safe for the purposes for which the bridge is used."
The jury could not escape the conclusion that the county could reasonably anticipate the weight of its own machine, and, indeed, that it knew of it. There was error in thus holding the county to responsibility for more than the "ordinary weight" as prescribed by the statute.
In this connection the county officers cannot enlarge the county's liability under the statute by the purchase of a road machine of extraordinary weight. Such will not render its excessive weight, as compared with all else upon the county roads, as in this instance, "ordinary" within the terms of the statute. And the liability will not be increased by estoppel or otherwise by knowledge or acts of the officials. Chick v. Newberry, 27 S.C. 419, 3 S.E., 787; Hill v. Laurens County, 34 S.C. 141, 13 S.E., 318.
The judgment of this Court should be that the judgment of the Circuit Court be reversed and that the case be remanded to that Court for entry of judgment in favor of the defendant under Rule 27.