Southerland v. Davis
| Decision Date | 30 January 1923 |
| Docket Number | 11121. |
| Citation | 115 S.E. 768,122 S.C. 511 |
| Parties | SOUTHERLAND v. DAVIS, AGENT. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Orangeburg County; I. W Bowman, Judge.
Action by D. W. Southerland against James C. Davis, as Agent. Judgment for plaintiff, and defendant appeals. Affirmed.
T. M Raysor, of Orangeburg, for appellant.
Wolfe & Berry and A. H. Moss, all of Orangeburg, for respondent.
The plaintiff, a section foreman in the employ of the defendant was injured while in the discharge of his duties, and thereafter brought this action against the defendant for the recovery of damages. From judgment on verdict in favor of the plaintiff for the sum of $5,790, the defendant appeals.
The exceptions, five in number, raise three points.
The first is grounded upon the refusal of the trial judge, Hon. I. W. Bowman, to charge:
"That, even if the jury find that the defendant company was guilty of negligence, yet, if they find that the plaintiff would not have been injured but for his own want of care in doing what a person of ordinary care and prudence would not have done, or omitting to do what such a person would have done, and that such want of care on his part, together with the negligence of the defendant, was the sole proximate cause of his injury, then nothing can be recovered."
The defendant's answer sets up the defense that the plaintiff was engaged in interstate commerce at the time of his injury, and that his sole and exclusive right of action, if any, was under the act of Congress relating to the liability of common carriers by railroad to their employees. It is conceded by appellant that the case was properly tried on the theory of the applicability of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Since the effect of that act is to abolish the defense of contributory negligence as a complete defense, and to establish the doctrine of comparative negligence, if the requested instruction was in conflict with that rule, applicable to the case under the defendant's own view of the law, it follows, of course, that the instruction should not have been given. Whether susceptible upon close analysis to a different construction or not, we think the obvious purport of the proposed charge was to instruct the jury that a finding of contributory negligence would bar a recovery in any amount. The request was therefore properly refused.
The second point (exception 2) is predicated upon the alleged failure of the trial judge to charge the defendant's fourth request, as follows:
The record discloses that the request was given, without modification, followed by the comment:
"That is a question for you gentlemen."
Appellant contends that the mere reading of the request thus dubiously commended to the favorable consideration of the jury was misleading and prejudicial. After giving the instruction introduced by the unambiguous "I charge you," it cannot be held that the defendant was deprived of any benefit to which he was properly entitled by this explanatory comment. The instruction as framed was open to the possible criticism of including a finding of fact by the Court to the...
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