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.
Party Name:SOUTHERLAND v. DAVIS, AGENT.
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

SOUTHERLAND

v.

DAVIS, AGENT.

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.

MARION, J.

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 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)...

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49 practice notes
  • 143 S.E. 31 (S.C. 1927), 12275, Duncan v. Record Pub. Co.
    • United States
    • South Carolina Supreme Court of South Carolina
    • September 21, 1927
    ...power, exclusively vested in him by law to grant new trial for or on account of matters of fact. Southerland v. Davis, 122 S.C. 511, 515, 115 S.E. 768; Huggins v. Railroad Co., 96 S.C. 267, 278, 79 S.E. 406; Bing v. Railroad Co., 86 S.C. 530, 68 S.E. 645. Or, as was said by this court in Un......
  • 126 S.E. 119 (S.C. 1923), 11144, Currie v. Davis
    • United States
    • South Carolina Supreme Court of South Carolina
    • February 26, 1923
    ...v. Railroad Co., 96 S.C. 267, 79 S.E. 406; Yarborough v. Electric Co., 100 S.C. 33, 84 S.E. 308; Southerland v. Davis, 122 S.C. 511, 115 S.E. 768; Southern Ry. v. Bennett, 233 U.S. 81, 34 S.Ct. 566, 58 L.Ed. 860. In submitting the case upon the theory that actual damages for humiliation wer......
  • Table of Cases
    • United States
    • Construction Law, Second Edition
    • January 1, 2019
    ...Dreyfus Interstate Dev. Corp., 352 So. 2d 76 (Fla. 4th Dist. Ct. App. 1977), 519 n.24 Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 122 S. Ct. 511 (2001), 245 n.121 Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995), 245–247, 288 Adarand Constructors, Inc. v. Pena, 515 U.S. 20......
  • 197 S.E. 97 (S.C. 1938), 14644, Mishoe v. Atlantic Coast Line R. Co.
    • United States
    • South Carolina Supreme Court of South Carolina
    • March 16, 1938
    ...to manifest abuse of the discretionary power in such matters exclusively vested in him by law." Southerland v. Davis, 122 S.C. 511, 115 S.E. 768, 769, opinion by Mr. Justice Marion. "We hold it to be the settled rule of law in this jurisdiction that the granting of a new trial on ......
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46 cases
  • 143 S.E. 31 (S.C. 1927), 12275, Duncan v. Record Pub. Co.
    • United States
    • South Carolina Supreme Court of South Carolina
    • September 21, 1927
    ...power, exclusively vested in him by law to grant new trial for or on account of matters of fact. Southerland v. Davis, 122 S.C. 511, 515, 115 S.E. 768; Huggins v. Railroad Co., 96 S.C. 267, 278, 79 S.E. 406; Bing v. Railroad Co., 86 S.C. 530, 68 S.E. 645. Or, as was said by this court in Un......
  • 126 S.E. 119 (S.C. 1923), 11144, Currie v. Davis
    • United States
    • South Carolina Supreme Court of South Carolina
    • February 26, 1923
    ...v. Railroad Co., 96 S.C. 267, 79 S.E. 406; Yarborough v. Electric Co., 100 S.C. 33, 84 S.E. 308; Southerland v. Davis, 122 S.C. 511, 115 S.E. 768; Southern Ry. v. Bennett, 233 U.S. 81, 34 S.Ct. 566, 58 L.Ed. 860. In submitting the case upon the theory that actual damages for humiliation wer......
  • 197 S.E. 97 (S.C. 1938), 14644, Mishoe v. Atlantic Coast Line R. Co.
    • United States
    • South Carolina Supreme Court of South Carolina
    • March 16, 1938
    ...to manifest abuse of the discretionary power in such matters exclusively vested in him by law." Southerland v. Davis, 122 S.C. 511, 115 S.E. 768, 769, opinion by Mr. Justice Marion. "We hold it to be the settled rule of law in this jurisdiction that the granting of a new trial on ......
  • 968 F.3d 402 (5th Cir. 2020), 18-10545, Texas v. Rettig
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • July 31, 2020
    ...note that the States have standing for their Provider Fee claims. See Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110, 122 S.Ct. 511, 151 L.Ed.2d 489 (2001) (per curiam) (citation omitted) (holding that courts must examine standing sua sponte if it has erroneousl......
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3 books & journal articles
  • Table of Cases
    • United States
    • Construction Law, Second Edition
    • January 1, 2019
    ...Dreyfus Interstate Dev. Corp., 352 So. 2d 76 (Fla. 4th Dist. Ct. App. 1977), 519 n.24 Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 122 S. Ct. 511 (2001), 245 n.121 Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995), 245–247, 288 Adarand Constructors, Inc. v. Pena, 515 U.S. 20......
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    • United States
    • Construction Law, Second Edition
    • January 1, 2019
    ...of certiorari, dismissed the granting of certiorari as being “improvidently granted.” Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 122 S. Ct. 511 (2001). The case had a nine-year history, beginning with Adarand Constructors v. Skinner, 790 F. Supp. 240 (D. Colo. 1992). 122. Advanced ......
  • Table of Cases
    • United States
    • The Path of Constitutional Law Suplemmentary Materials
    • January 1, 2007
    ...Inc. v. Slater (Adarand II), 228 F.3d 1147 (10th Cir. 2000), cert. granted then dismissed as improvidently granted, 534 U.S. 103, 122 S.Ct. 511, 151 L.Ed.2d 489 (2001), Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), 1387 Addington v. State of Texas, 441 U.S.......