Landreth v. Atlantic Refining Co.

October 10, 1935. The opinion of the Court was delivered by This suit by W.R. Landreth, as plaintiff, against the defendants, the Atlantic Refining Company, City of Greenville, and J.H. Roe, was commenced in the Court of Common Pleas for Greenville County, April 29, 1933, for recovery of damages against the defendants in the sum of $7,500.00, for personal injuries alleged to have been caused by certain acts and delicts of the defendants in the said County of Greenville. The City of Greenville demurred to the complaint on the ground, among others, that the place of the alleged injury was outside the city limits of the City of Greenville, and that, therefore, said defendant, City of Greenville was not liable. The said demurrer was sustained and an order to that effect, consented to by counsel for the plaintiff, was issued by the court. Answers were filed in the cause by the other defendants, each filing a separate answer, containing a general denial. Issues being joined as to these defendants, the case was tried in the said Court, May 23, 1934, before his Honor, Judge G. Dewey Oxner, and a jury. At the conclusion of the plaintiff's testimony, a motion was made by these defendants for a nonsuit. The plaintiff did not oppose the motion made by the defendant J.H. Roe, and a nonsuit was ordered as to that defendant. The motion was refused as to the other defendant, Atlantic Refining Company, and thereafter the Atlantic Refining Company introduced testimony and at the conclusion of all the testimony the Atlantic Refining Company made a motion for a directed verdict, which motion was refused, and the case was submitted to the jury. The jury returned a verdict against the Atlantic Refining Company for the sum of $3,750.00 actual damages. A motion for a new trial being made by this defendant, a new trial nisi was granted, providing that if the plaintiff would remit the sum of $1,000.00 upon the judgment, a new trial would be refused. The plaintiff remitted the said sum of $1,000.00 and judgment was, therefore, entered against the Atlantic Refining Company in the sum of $2,750.00.

From the judgment entered on the verdict, the defendant Atlantic Refining Company has appealed to this Court, upon exceptions which will be considered.

It is the contention of the appellant that the trial Judge erred in refusing to grant the motion for a nonsuit, the motion for a directed verdict, and in ordering excessive printing of the record.

For the purpose of better understanding the position of the parties to the action, we quote the following from the allegations of the complaint:

"II. That prior to April 22, 1933, the defendant, City of Greenville, had placed on the sidewalk or public way running along Douglas Avenue, a water meter protector or shield, which stood about an inch and one-half above the surface of the said sidewalk; that Douglas Avenue leads from the Buncombe Road to the Cedar Lane Road toward Monaghan Mill, in the County and State aforesaid; that prior to said date, the defendant, J.H. Roe, the owner of the lot, store building and filling station situate between the junction of the said Douglas Avenue and the said Buncombe Road, had permitted and allowed the defendant, The Atlantic Refining Company, to place on said sidewalk an iron pipe used by the defendant, The Atlantic Refining Company, to transfer gasoline from the gasoline trucks to the underground tanks of said filling station, operated by or for the defendant, J.H. Roe; that said pipe stood about ten or twelve inches above the ground; that the said City of Greenville owns and operates a water system by which numerous and sundry persons and corporations are furnished water by said City for private gain, as distinguished from its municipal or governmental functions, outside the corporate limits of the City of Greenville, and that said water meter was a part of said water system.

"III. That on said date, to-wit, April 22, 1933, plaintiff was walking along the sidewalk on said Douglas Avenue, struck his foot against the said water meter and was hurled to the ground, striking his head against the said iron pipe, the blow rendering him unconscious, cutting his face and head and giving to him serious, permanent, and painful injuries; that as a result of said injuries plaintiff's earning capacity has been permanently impaired, that said earning capacity was his only capital, constituted his private property, and that the acts and delicts of the defendants, combining and concurring with each other, resulted in the taking of private property by said defendants contrary to the State and Federal Constitutions.

"IV. That plaintiff's damage and injuries were the direct and proximate result of the willfulness, wantonness, carelessness and negligence of the defendants in the following particulars: (a) In the placing, by the said City of Greenville, of the said water meter protector or shield above the surface of the sidewalk, a much traveled public way; (b) in placing and permitting to be placed by the defendants, The Atlantic Refining Company, a corporation, and J.H. Roe, of the said iron pipe on said sidewalk; and (c) in allowing, causing and permitting said premises and sidewalks to be and remain in a condition dangerous to pedestrians and the traveling public, who for a long period of time had been accustomed to use said sidewalk or public way.

"V. That said acts of the defendant, City of Greenville, combining and concurring with the said acts and delicts of its co-defendants, The Atlantic Refining Co. and J.H. Roe, were the direct and proximate cause of plaintiff's injuries and damage, as above alleged, resulting in his being forced to suffer great physical pain and mental anguish, and constituting the taking of private property, as above alleged, in the sum of Seventy-Five Hundred ($7,500.00) Dollars."

The appellant's motion for a nonsuit was based upon the following grounds:

"1st. There is no evidence of negligence as being the proximate cause of the injury which can be attributed to either of the present defendants.

"2nd. That the fall of the plaintiff, if any, was due to his own negligence and want of care.

"3rd. The pipe upon which the plaintiff states that he fell was in no sense the cause of his fall.

"4th. There is no evidence of any negligence in the placing of the pipe or in its construction."

As stated, at the close of all of the testimony the appellant made a motion for a directed verdict. This motion was based upon the same grounds as the motion for a nonsuit and upon the additional ground "that this being a suit for a joint tort and the City of Greenville and J.H. Roe, two of the alleged joint tort-feasors, having been dismissed, there could be no recovery against the Atlantic Refining Company as a participant in a joint tort."

The allegations of error set forth in the exceptions, imputed to the trial Judge, are an amplication of the grounds upon which the motion for a nonsuit and the motion for direction of a verdict were based, reading as follows, which will be considered together:

"I. Because his Honor erred in refusing the motion of the appellant for a non-suit upon the first ground urged, to the effect that there was no evidence of negligence on the part of the appellant to go to the jury as being the proximate cause of the injury;

"The error being that any negligence of any of the parties which was the proximate cause of the fall of the plaintiff was the negligence of the City in regard to the exposed meter box over which the plaintiff stumbled. That the pipe which belonged to the appellant was not the proximate cause of the plaintiff's fall.

"II. Because his Honor erred in not sustaining the second ground of the motion for non-suit, to the effect that the fall of the plaintiff, if any, was due to his own negligence and want of care;

"The error being that the testimony shows the utterly careless manner in which the plaintiff was walking and that such negligence was the sole cause of his fall.

"III. Because his Honor erred in not sustaining the third ground of the motion for non-suit, to the effect that the pipe upon which plaintiff states that he fell was in no sense the proximate cause of his fall;

"The error being that the fall of the plaintiff was due to the meter box and not to the pipe alleged to be owned by the appellant.

"IV. Because his Honor erred in not sustaining the fourth ground of the motion for non-suit, to the effect that there is no evidence of any negligence in the placing of the pipe or in its construction;

"The error being that the proof fails to show any facts tending to show such negligence and without such proof there was nothing to go to the jury on this ground.

"V. Because his Honor erred in refusing to direct a verdict in favor of the appellant upon the close of all the testimony upon the grounds alleged in the motion for a non-suit and upon the further ground that this being a suit for a joint tort and two of the alleged joint tort-feasors having been dismissed, there can be no recovery against the remaining defendants as a participant in a joint tort, the dismissal of the other two defendants being with the consent of the plaintiff's attorneys;

"The error being that a joint tort having been alleged in the Complaint with the City of Greenville as the principal offender and the defendant, J.H. Roe, and the defendant, Atlantic Refining Company, being incidental offenders, no recovery could be had against Atlantic Refining Company after the voluntary dismissal on the part of the plaintiff of his cause of action against the other two alleged joint tort-feasors."

As stated by appellant, the case starts out with three separate principals. The allegations as to the part each of these principals played are set forth in the portion of the complaint which we have copied above. For the reasons shown above, two of the principals were dismissed. The City of Greenville was dismissed on demurrer for the reason that it was not shown that the alleged injury occurred within said city; and the defendant, J.H. Roe, was let out on an order of nonsuit, it appearing from the proof in the case that the fall and the consequent injury of the plaintiff occurred on the sidewalk and no proof was produced connecting this defendant with it.

Therefore, the case went to jury against the other defendant, the Atlantic Refining Company, alone. The appellant contends that but for striking his foot against the meter box the plaintiff would not have fallen and would not have struck against the pipe in question, and that, therefore, his injury would not have occurred. It is the contention of appellant that the alleged acts of appellant could not be regarded as the proximate cause of this injury; that the proximate cause was the act of the other defendants and they having been discharged by the Court, with the consent of the plaintiff, the wrong cannot now be saddled upon the Atlantic Refining Company who had no part in causing the plaintiff to fall and become injured. In considering the question of proximate cause, the appellant calls attention to the case of Keel v. Seaboard Air Line Ry., 122 S.C. 17,114 S.E., 761, 763, and quotes from the opinion in that case the following, as supporting appellant's position: "The law of proximate cause requires an unbroken sequence between the prime act of negligence and the injury; and when it appears that an active cause intervened between the prime act and the injury, producing the injury, the prime act will not be deemed the proximate cause unless it appears that the intervening act was itself a result reasonably to have been expected from the prime act, in which case the connection between the prime act and the injury is maintained — the sequence is not broken. See the very clear statement upon the subject in Sandel v. State, 115 S.C. [168], 177,104 S.E., 567, 13 A.L.R., 1268."

In this connection counsel for appellant states his position thus:

"It is admitted the cause of the fall was the meter box. There is no allegation nor is there any evidence that anyone falling against the pipe after striking his toe against the meter box and being thrown to the ground, could reasonably have expected the result that did happen. In other words, the prime act of the injury was the box. The meter box was physically present; his toe contacted it; he fell to the ground; he struck the pipe. The meter box and pipe were set at different times. Whichever was set first could not have been expected to be a link in a chain of circumstances that one day or another, by reason thereof, there would be a pipe or a box set up making an unbroken sequence of events in which somebody would be injured. The box can in no sense be attributable to the pipe, nor can the pipe be to the box. No allegation or proof that the pipe was other than in good repair and standing alone was harmless.

"It became an instrument of danger only when something else set the man in motion to contact it. If something else, with which appellant had no connection or control, set the man in motion, then, according to the evidence, the only reason he was injured was that the pipe got between him and the ground and that, too, in and during his fall and before he struck the ground. The pipe was, therefore, an instrument of intervention and not the prime act in that series of circumstances. The sequence between the prime act of negligence (the meter box) and striking the ground, as would have been natural, was broken by the intervention of the pipe, independently and disconnectedly of and with the box.

"The above conclusion is adaptable to cases of a threefold nature, generally, and determines the disposition of this case, specifically, because this is the allegation of paragraph V of the Complaint."

Paragraph 5 of the complaint, to which counsel for appellant refers, and to which we have made reference herein, is quoted above. It is the position of appellant that the allegations of said paragraph when carefully read, mean that "the said acts of the defendant City of Greenville, were the direct and proximate cause of plaintiff's injuries." While it is conceded by appellant that it is alleged by the plaintiff that this direct cause combined and concurred with the other defendants, that is, with the acts of the other defendants, appellant points out that there is no allegation by the plaintiff that the injury would not have happened but for the fact that the defendant J.H. Roe owned the land in question, and contends, in effect, that it takes such ownership to complete the chain alleged. In this connection appellant contends that the prime cause of the plaintiff's alleged injuries, charged against the City of Greenville, moved through the ownership of Roe, who, it is alleged, permitted the appellant the use of his said land for the insertion of said pipe. Just here, appellant calls attention to the fact that the defendants City of Greenville and J.H. Roe were dismissed from the action and that the appellant, Atlantic Refining Company, was left as the only alleged offending party to answer for the injuries alleged to have been sustained by the plaintiff. Appellant calls attention to the rule that joint tort-feasors cannot be sued both separately and jointly and in this connection refers to the case of Pendleton v. Columbia Railroad, Gas ElectricCompany et al., 132 S.C. 507, 128 S.E., 711, and states that it takes cooperation to have resulted as alleged by the plaintiff. Appellant calls attention to the position that there is an allegation in the complaint "paragraph 5" that "said acts of the defendant, City of Greenville, combining and concurring with the said acts and delicts of its co-defendants" caused the injury.

In stating appellant's position on the questions raised by the appeal, counsel for appellant discuss several South Carolina cases, including cases cited by the respondent. However, under our view of the case, it is not necessary to discuss all of the cases cited and discussed by counsel. Under our view of the case, the case is governed by the well-recognized rules stated in 45 C.J., pages 920-924, from which we quote, as follows:

"As a general rule, it may be said that negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes, other than plaintiff's fault, is the proximate cause of the injury. So that where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause, without which the injury would not have resulted, to as great an extent, and that such other cause is not attributable to the person injured. But it must appear that the person sought to be charged was responsible for one of the causes which resulted in the injury. The concurring negligence of another cannot transform the remote into the proximate cause of an injury or create or increase liability therefor.

"Under the above rules the cause concurring with defendant's negligence may be the negligent act of a third person, if the act of such other is not imputable to the person injured, or such concurring cause may be an accident or an act of God, or some inanimate cause.

"Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes, and recovery may be had against either or all of the responsible persons, although one of them was more culpable, and the duty owed by them to the injured person was not the same. Where the injury results from two or more causes for all of which defendant is liable, it is immaterial which was the proximate cause."

The above-stated principles were stated and quoted with approval in the opinion written by Mr. Chief Justice Blease, as the organ of the Court, in the case of Huggins v. AtlanticCoast Line Railroad Co., 158 S.C. 501, 155 S.E., 839, 840.

As stated, two of the defendants to the action at bar, against whom negligence was charged, were dismissed, but this did not absolve the other defendant, against whom negligence was charged and proven, from liability to the plaintiff. There may be a recovery against a defendant, against whom negligence is alleged and proven, resulting in injury to the plaintiff as a proximate cause in conjunction with another independent proximate cause even not alleged. See the case of Settlemeyer v. Southern Railway — Carolina Division,91 S.C. 147, 74 S.E., 137, from which case we quote the following from the syllabus of the opinion: "There may be a recovery upon evidence tending to show that an injury was caused by the negligence alleged in the complaint operating as a proximate cause in conjunction with another independent proximate cause not alleged."

In this connection we call attention to the rule expressed in the following language which we quote from the opinion in the case of Huggins v. Railway Company, supra: "As a general rule, it may be said that negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes, other than plaintiff's fault, is the proximate cause of the injury."

We also call attention to the opinion of this Court written by Mr. Justice Bonham, as the organ of the Court, in the case of Correll v. City of Spartanburg, 169 S.C. 403, 413,169 S.E., 84, 88: "So that where several causes combined to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause, without which the injury would not have resulted, to as great an extent, and that such other cause is not attributable to the person injured."

We agree with the contention of the respondent that, in the case at bar, it is reasonable to presume that the plaintiff's said injuries would not have been so great if he had not fallen against the pipe in question; and, further, it is reasonable to presume that the plaintiff may not have been injured at all if he had not fallen against the pipe in question. At least, these questions were issues for the jury. Further, whether placing the said pipe and/or maintaining the same at the place in question constituted an act of negligence on the part of the defendant Atlantic Refining Company, which caused the plaintiff's said injury, as a proximate cause, or added to the severity or greatness of said injury, as a proximate cause thereof, were issues for the jury. Of course, it is the universal rule, needing no citation of authorities, that when more than one reasonable inference can be drawn from a given state of facts, or when more than one reasonable inference can be drawn from the evidence involving a certain fact or certain facts, a jury question is raised and the same must be submitted to the jury. In our opinion, the trial Judge properly refused the motion for a nonsuit and the motion for a direction of a verdict, and properly submitted the said issues to the jury.

As to the contention that the plaintiff's said injuries were caused by his own negligence, we deem it sufficient to state that, under the record of the case, it was incumbent upon the trial Judge to submit that issue to the jury. In this connection we call attention to the fact that the appellant has not raised any question regarding the Judge's charge to the jury and we must, therefore, assume that his Honor properly and fully charged the law applicable to the issues involved in the case.

The appellant also calls attention to the fact that in the settlement of the case the trial Judge ordered certain of the testimony printed in the case which the appellant objected to and contends that such testimony was unnecessary in presenting the appeal and caused unnecessary printing. Appellant further contends that the cost of this extra printing should be taxed against the respondent. We think, that, under the circumstances of the case, the trial Judge made a proper ruling on this question.

The exceptions are overruled and the judgment of the Circuit Court affirmed.

MR. CHIEF JUSTICE STABLER and MR. JUSTICE BAKER concur in result.