115 S.E. 768 (S.C. 1923), 11121, Southerland v. Davis

Docket Nº:11121.
Citation:115 S.E. 768, 122 S.C. 511
Opinion Judge:MARION, J.
Attorney:T. M. Raysor, of Orangeburg, for appellant. Wolfe & Berry and A. H. Moss, all of Orangeburg, for respondent.
Case Date:January 30, 1923
Court:Supreme Court of South Carolina

Page 768

115 S.E. 768 (S.C. 1923)

122 S.C. 511




No. 11121.

Supreme Court of South Carolina

January 30, 1923

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.

Page 769

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[122 S.C. 512] 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 [122 S.C. 514] 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...

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