December 12, 1910. The opinion of the Court was delivered by
MR. JUSTICE GARY.
This is an action for damages, alleged to have been sustained by the plaintiff, in consequence of an injury to his mule, caused by a defect in a bridge, forming part of the highway.
All issues were referred to a special referee, who reported that the defendant was not liable for damages, and that the complaint should be dismissed.
The plaintiff excepted to the report which was confirmed by the Circuit Court.
There is a single exception, which is as follows: "That the presiding Judge erred in not holding, that the said bridge was a part of the public highway, built by authority of law by the county chain gang, and that the public was invited to use it as such, and was on the Bull Swamp right-of-way, and any one traveling upon the public highway, and using the said bridge was injured in his person or property, by a defect therein, would be protected by Section 1347 of Civil Code of Laws of South Carolina, and said county would be liable for damages, resulting from such injuries sustained."
The action was legal in its nature, and as the exception only involves a question of fact it is not the subject of review by this Court. Rippy v. Smith, 77 S.C. 414, 57 S.E. 1097; Ritter v. R.R., 83 S.C. 213, 65 S.E. 175.
It however, by no means follows, that the plaintiff would be entitled to recover damages even if his Honor, the Circuit Judge, had found as a fact, that the bridge formed a part of the public highway. McFail v. Barnwell County, 57 S.C. 294, 35 S.E. 562.
Appeal dismissed.