GARY
A. J.
The
record contains the following statement of facts
"Action for damages to person and property, $1,950
alleged to have been sustained by G. W. Bowen, plaintiff, in
a collision with defendant's train at a highway crossing
on November 2, 1898, near Easley, in Pickens county. The
action is brought under the statute requiring certain signals
to be given by railroad companies as their trains approach a
crossing, the negligence alleged being a failure on the
defendant's part to observe said requirements. The
defendant answered, denying the said injury and pleading
contributory negligence. The cause was tried before Judge
Ernest Gary and a jury at Pickens on October 26, 1899. The
jury rendered a verdict in favor of the plaintiff for $1,925.
Upon motion for a new trial the circuit judge granted an
order allowing a new trial unless the plaintiff within ten
days remitted all of said verdict in excess of $1,200.
Plaintiff duly remitted said excess, and entered up judgment
for $1,200 and costs. Within ten days after the rising of the
court the defendant gave notice of intention to appeal, and
within due time served the exceptions."
The
first exception is as follows: "The presiding judge
charged the jury as follows: 'But, if it [railroad
company] did conform to the statute as to blowing the whistle
and ringing the bell, then they would not be liable, if there
was no want of ordinary care.'. Such charges being
erroneous in the following particulars: (a) In imposing upon
the defendant the duty of both blowing the whistle and
ringing the bell, whereas the statute exculpates it if either
signal is given. (b) The action was brought under the statute
(Rev. St.§§ 1685, 1692), and the only negligence alleged was
the failure to give the statutory signals. The plaintiff was
not entitled to recover upon proof of any other negligence.
The judge's charge required the defendant to disprove the
negligence alleged, and to show, also, that it was guilty of
no other act of negligence, or allowed the plaintiff to
recover upon some act of negligence not
alleged." We will first consider subdivision
"a." The presiding judge read to the jury the
section of the Revised Statutes mentioned in the exception.
In the case of Smith v. Railway Co., 53 S.C. 121, 30
S.E. 697, the court uses this language: "This court has
frequently declared the rule to be that, when a judge has
once laid down the law correctly, he will not be held to a
stern responsibility if he failed thereafter to charge
requests embodying the law which he has already charged. It
seems to us not to be reversible error, if a judge has read
the statute itself in the presence of the jury, and should
thereafter, in commenting upon the law, drop the disjunctive
conjunction 'or,' using instead the copulative
conjunction 'and,' unless he was doing more than
running over the statutory proviso. If, however, the circuit
judge was subjecting the language employed in the statute to
a critical analysis, whereby and wherein it became important
that the difference in meaning and effect between the word
'and' and 'or' should be carefully noted
then in such instance it would be error; but, as in case at
bar, and
under its surrounding facts, for the circuit judge to ignore
the distinction, if error at all, would be harmless
error." This ruling shows that said subdivision cannot
be sustained. Subdivision "b" will next be
considered. The defendant's negligence is thus alleged in
paragraph 3 of the complaint: "(3) That the defendant,
by its servants, agents, and employés having in their care,
control, and management a certain locomotive engine and train
of cars thereto attached, forming train number 2, and south
bound, carelessly, negligently, and wrongfully failed to
sound the whistle of said locomotive or ring the bell thereon
as was required by the law of the said state, appearing as
section 1685 of the Revised Statutes of 1893 of said state,
and caused the said locomotive and train of cars to approach
the plaintiff without warning, and unexpectedly to him and at
a rapid and high rate of speed, while he was attempting to go
over said crossing as aforesaid, and, without his fault,
caused said locomotive to strike him, severely cutting and
bruising various parts of his body, causing
great suffering and pain, and permanently injuring him."
The acts of negligence alleged are (1) failure to comply with
the statutory requirements as to signals; (2) "causing
the said locomotive and train of cars to approach the
plaintiff without warning, and unexpectedly to him, and at a
rapid and high rate of speed." The plaintiff, under the
act of 1898 entitled "An act to regulate the practice in
the courts of this state in actions ex delicto for
damages," had the right to submit to the jury both acts
of alleged negligence.
The
second exception is as follows: "The presiding judge
charged the jury as follows: 'If the railroad did not
conform to the statute in blowing the whistle and ringing the
bell, then the law says that it is liable;' such charge
being erroneous in the following particulars: (a) In imposing
upon the defendant the duty of both blowing the whistle and
ringing the bell, whereas the statute exculpates it if either
signal is given. (b) The statute does not impose an absolute
liability upon the defendant for a failure to comply with the
requirements as to signals, but such liability attaches only
under these circumstances: (1) An injury to person or
property by collision with the train must have occurred; (2)
the collision must have taken place at a highway crossing;
(3) the neglect to give the signals must have contributed to
the injury; (4) the injured must not have been guilty of
gross negligence contributing to the injury."
Subdivision "a" is disposed of by what was said in
considering the first exception. We will next consider
subdivision "b." The exception sets out only a
portion of the sentence in which the presiding judge charged
the jury as therein stated. He also read the statute, as
explanatory of his words. The charge must be considered in
its entirety, and when thus considered it will be seen that
subdivision "b" cannot be sustained.
The
third exception is as follows: "The presiding judge
charged the jury as follows: 'The defendant railroad
company says that he [the plaintiff] has not
been injured, and, if he has been injured, it was through his
own carelessness in not observing the train, and that they
were not at fault because ...
