Supreme Court of South Carolina, 1926

Huggin v. Town of Gaffney

Supreme Court of South Carolina · Decided March 11, 1926 · Chirr, Gary, Messrs, Watts, Cothran, Brease, Stabler

132 S.E. 163; 134 S.C. 114; 1926 S.C. LEXIS 29 (South Eastern Reporter)

Counsel

Messrs. Butler Hall , for appellant, cite: Failure to provide safety devices required by city ordinance is negligence per se: 83 S.C. 354 ; 62 S.C. 325 . Negligence question of fact for jury: 94 S.C. 324 ; 92 S.C. 490 ; 91 S.C. 201 ; 91 S.C. 175 ; 76 S.C. 49 . When necessary to prove lack of contributory negligence: Civ. Code 1922, Sec. 4478. Joint tort-feasors liable jointly and severally: 94 S.C. 189 . Liability of master dependent on negligence of servant: 113 S.C. 522 . Messrs. Dobson Vassy , for respondent, town of Gaffney, cite: Municipal defendant herein entitled to directed verdict: 89 S.C. 520 . Unlawful act to be negligence per se must be cause of injury: 128 S.C. 363 . Appellate Court cannot say charge is prejudicial without the testimony before it: 107 S.C. 130 ; 110 S.C. 266 ; 66 S.C. 250 ; 65 S.C. 324 ; 55 S.C. 249 ; 53 S.C. 125 ; 51 S.C. 505 . No reversal for harmless error: 108 S.C. 400 ; 64 S.C. 112 ; 44 S.C. 548 ; 20 S.C. 376 . When error harmless: 96 S.C. 339 . Verdict for defendants conclusive as to facts alleged by them: 111 S.C. 553 . Mr. J.B. Bell , for respondent, T.J. Cagle.

Opinion of the Court

*140 The opinion of the Court was delivered by

Mr. Chirr Justice Gary.

The reporter will incorporate in the report of this case the preliminary statement in the case, the complaint, the answer, the Judge’s charge, and the exceptions.

All of the exceptions, except the eighth, are sustained, for the reasons stated therein.

The eighth exception-is manifestly incomplete, and has not been considered.

With reference particularly to' the fifth, sixth and tenth exceptions: The cases of Walker v. Chester County, 18 S. E., 936; 40 S. C., 342, and McLees v. City of Anderson, 64 S. E., 750; 82 S. C., 565, are clear to the point that, in an action against a municipality under the statute, it is incumbent upon the plaintiff to allege and prove, not only that the defendant was negligent, but also that he was free from contributory negligence. This obligation, however, does not rest upon the plaintiff so far as an individual defendant is concerned. There was error therefore in not charging the jury as requested by the plaintiff in this particular.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.

Messrs. Justices Watts, Cothran, Brease and Stabler concur.

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