Opinion
14879
May 11, 1939.
Before SHARKEY, J., Civil Court, Florence, July, 1937. Affirmed.
Action by Minnie L. Driggers against the City of Florence for injury sustained by plaintiff when she stepped into an open water-meter box. From an order granting defendant's motion for nonsuit the plaintiff appeals.
The order of Judge Sharkey follows:
This is the second trial of this case by the Court and a jury. In the first trial the verdict of the jury on July 14, 1937, awarded the plaintiff damages in the sum of $400.00. Upon a motion by the defendant for a new trial upon grounds as therein set forth and practically the same grounds for a nonsuit in this trial the Court issued an order, dated and filed September 23rd, 1937, granting a new trial and setting aside the verdict of the jury as will more fully appear by reference to said order now on file in this cause.
Upon the second trial of this case on January 24th and 25th, 1938, by the Court and a jury, the following facts appear by the plaintiff's testimony and evidence in the cause, to wit:
Plaintiff, at about 7 o'clock on the night of November 12, 1936, was proceeding on foot on the north side of West Darlington Street, between Coit and Irby Streets. Darlington Street at this point is a much traveled thoroughfare. The sidewalk at this location consists of an unpaved walkway about five feet wide. Between the outer edge of the dirt sidewalk and the gutter which borders the street there is a grass plot several feet in width, in which a water-meter box is located. At the point involved, the dirt sidewalk, as the result of constant use, is several inches lower than the grass plot. It has been permitted by the defendant to remain in this condition for a considerable length of time. On the day preceding the night of the accident and on the same day of the accident, a considerable amount of rain had fallen, and water was standing from one to two inches deep on the sidewalk between the line fence on one side and the grass plot on the opposite side. The grass plot was covered with a growth of grass and weeds surrounding and concealing the water-meter box. On the night in question, in order to avoid the water and mud on the sidewalk, the plaintiff digressed to the right of her course from the sidewalk on to the grass plot. The water-meter box referred to above, for some cause regarding which the evidence is silent, was open. After proceeding a very short distance, the plaintiff stepped into the open water meter box causing the injuries complained of by her.
Plaintiff imputes negligence to the defendant in the following particulars:
In allowing the water-meter box to remain open and unguarded by lights or other warning signs; in allowing grass to conceal the presence of the open water-meter box; and, generally, in failing to provide plaintiff with a safe walkway on a public thoroughfare; and in failing to keep its streets in an adequate state of repair.
From the foregoing it will be seen that the circumstances which combined to produce plaintiff's injury were: The defective condition of the sidewalk, resulting in impounding the water thereon; the growth of grass and weeds in the grass plot which concealed the open meter box; and the open water meter box.
Considering these circumstances in their inverse order, the mere fact that the water-meter box was open at the time of the accident is all that the record shows. The nature of the agency which brought this about is entirely conjectural. The evidence does not establish the fact that the defendant had actual notice of the open water-meter box. The only evidence which furnishes any information as to the length of time it had remained open preceding the accident, is found in the testimony of the witness, New, who stated that he had seen it open about five o'clock in the afternoon of the accident, a period of only two hours. Constructive notice could not within reason be attributed to the defendant upon the basis of this evidence.
The immediate cause of the accident was the open water-meter box. This cause was independent of and disassociated with any act of negligence of the defendant. It was an independent, intervening cause, and without which the accident would not have occurred.
Upon the conclusion of plaintiff's direct testimony, the defendant made a motion for an order granting a nonsuit upon the following ground, to wit: "Because this suit was brought by the plaintiff against the City of Florence, a municipal corporation of South Carolina, under permission of the provisions and requirements of Section 7345 of the Code of 1932, to recover damages from personal injuries as the result of actionable negligence, by the defendant city in maintaining a defective street by allowing a water-meter box to remain open and uncovered in the walkway of a public street as the proximate cause of the alleged injuries, and it is respectfully submitted that there is not a scintilla of evidence, competent or incompetent, from which the jury could possibly draw a reasonable inference that the defendant city had any notice or knowledge, actual or constructive, of the fact that the top of said water-meter box had been tampered with or misplaced producing an unanticipated proximate cause from which an unforeseen accident happened and for such reason the evidence is wholly insufficient to present an issue for the jury that the defendant was guilty of actionable negligence by failure to discover the open water-meter box and replace the top of said water-meter box in its proper position within a reasonable time after notice, actual or constructive, that the top of said water-meter box had been removed or misplaced."
"Any cause which is natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of, and without which the result would not have occurred," is a comprehensive and yet succinct definition of proximate cause.
It is clear from the evidence in this case that the defective condition of the walkway and the grass plot were remote causes, if any, of the injury and were insufficient in themselves to have brought the injury about. The final contributory circumstance which completed the sequence and immediately produced the injury was the open water-meter box. As stated, it was the intervening primary cause of the accident and such negligence as the evidence might impute to the defendant because of defects in the walkway and the grass plot become the remote causes. The following is a well-considered statement of the precise point under consideration: "A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition set into operation the circumstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause." 45 C.J., pages 931, 932.
After hearing arguments by J.D. Gilland, Esq., attorney for the defendant, in support of the motion for a nonsuit, and P.H. McEachin, Esq., attorney for the plaintiff, in opposition thereto, and it appearing to the satisfaction of the Court for the reasons hereinbefore assigned that the defendant's motion for a nonsuit should be granted, now, therefore,
It is ordered, that the defendant's motion for a nonsuit be, and the same is hereby, granted; and that the defendant have judgment against the plaintiff for the costs and expenses of this action to be taxed by the Clerk of Court.
Messrs. McEachin Townsend, for appellant, cite: As to improper maintenance and defects in streets: 159 S.C. 425; 157 S.E., 447; 164 S.C. 507; 162 S.E., 749; 171 S.C. 196; 171 S.E., 916; 107 S.C. 124; 92 S.E., 191; 113 S.C. 489; 101 S.E., 834; 94 S.C. 375; 78 S.E., 23; 88 S.C. 553; 71 S.E., 49; 139 S.C. 295; 137 S.E., 743; 169 S.C. 403; 169 S.E., 84; 84 S.C. 122; 65 S.E., 1030; 106 S.C. 255; 91 S.E., 203; 89 S.C. 511; 72 S.E., 228; 36 L.R.A. (N.S.), 363. Liability of joint tort-feasors for concurrent acts: 168 S.C. 481; 168 S.E., 826; 164 S.C. 351; 162 S.E., 325; 133 S.C. 351; 131 S.E., 265; 67 S.C. 499; 46 S.E., 335; 65 L.R.A., 286; 95 S.C. 124; 78 S.E., 705; 38 Cyc., 488; 233 S.W. 419; 17 A.L.R., 637; 135 A., 100; 49 A.L.R., 1227; 54 A., 1026; 22 R.C.L., 112; 106 S.E., 360; 69 S.W. 803. Constructive notice: 199 S.E., 525; 199 S.E., 207.
Messrs. J.D. Gilland and W. Stokes Houck, for respondent, cite: Knowledge of defect: 129 S.C. 257; 123 S.E., 839; 169 S.C. 403; 169 S.E., 84.
May 11, 1939. The opinion of the Court was delivered by
We have read with care the testimony in this case, and are satisfied that the conclusions reached by the trial Judge are correct.
For the reasons stated in his order of nonsuit, therefore which will be reported, the judgment of the Court below is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE H.F. RICE concur.
MR. JUSTICE CARTER did not participate on account of illness.