Carolina Division

• Decision Date: 30 January 1933
• Docket Number: 13566.
• Citation: 167 S.E. 839,169 S.C. 1
• Parties: LAWRENCE v. SOUTHERN RAILWAY-- CAROLINA DIVISION.
• Court: South Carolina Supreme Court

167 S.E. 839

169 S.C. 1

LAWRENCE v. SOUTHERN RAILWAY-- CAROLINA DIVISION.

No. 13566.

Supreme Court of South Carolina

January 30, 1933

Appeal from Common Pleas Circuit Court of Charleston County; M. M Mann, Judge.

Action by Cambridge Lawrence against the Southern Railway--Carolina Division. Judgment for plaintiff, and defendant appeals.

Affirmed.

N. B Barnwell, of Charleston, and Frank G. Tompkins, of Columbia for appellant.

Thomas P. Stoney, J. D. E. Meyer, M. E. Crosland, and J. C. Long, all of Charleston, for respondent.

BLEASE Chief Justice.

Action for damages to person and property growing out of a collision between automobile and standing train of freight cars.

The cause was tried before Circuit Judge M. M. Mann and a jury at the April, 1930, term of the court of common pleas for Charleston county, and resulted in a verdict in plaintiff's favor of $25,000 actual damages for personal injuries and of $1,000 for property damages. It had been tried twice before, resulting in a mistrial each time.

From judgment duly entered comes this appeal upon numerous exceptions.

Briefly summarized, the complaint set forth that on November 17, 1928, in the nighttime, about 1:45 a. m., the defendant, in the operation of a train of freight cars across King street, at Simmons street, two public streets of the city of Charleston, blocked and obstructed the crossing; that in the train, and standing immediately upon the crossing, was a car whose doors were open, so that the street lights thereabout shone through the open windows, creating a deceptive and dangerous situation for the traveler upon the highway, and decreasing the visibility of the blocking of the crossing; and that, while driving his automobile south on King street, a much-traveled thoroughfare at all times of the day and night, plaintiff collided with the standing car on the crossing, suffering severe and permanent personal injuries and damage to his automobile.

The allegations of negligence and willfulness are sixteen in number, but need not be set out here.

Defendant by its answer denied responsibility for the collision; charged that plaintiff's injuries and damages were due solely to his own negligence and willfulness; that his own negligence and willfulness, in the particulars set out, contributed to his injuries as a proximate cause without which they would not have occurred; and that plaintiff, at the time he was injured, was acting in violation of law in exceeding the speed limits of both state and city, which unlawful acts contributed to his injury. It also set up a counterclaim for damages to the box car.

On the trial, defendant's motions for a nonsuit and the direction of a verdict in its favor were refused.

The exceptions are twenty-six in number, but, by grouping them as appellant has done, much time and discussion may be saved.

We shall first consider those addressed to the court's refusal of defendant's motions for a nonsuit and directed verdict. These were predicated, in substance, upon the following grounds: (1) Contributory negligence of plaintiff, the proximate cause of his injury and damage; (2) no evidence of negligence or willfulness on part of defendants; (3) plaintiff's own negligence and recklessness was the proximate cause of his injury and damage; (4) plaintiff's injuries and damage were due to an intervening cause, to wit, the alleged excessive speed at which he approached the crossing.

These exceptions have to do with negligence and willfulness in one form or another. The record herein is voluminous, but we have given it tedious and careful consideration. There is conflicting testimony on the major points at issue. Under the decisions of this court, we are of the opinion that the issues thus raised were properly questions for the jury. This court is not required to pass on the weight of the testimony. Neal v. Southern Rwy., 162 S.C. 288, 160 S.E. 837.

The vast majority of the remaining exceptions assail, in a number of particulars, the soundness of the court's charge to the jury.

One group assigns error with respect to the charge on contributory negligence. A careful reading of the portion of the charge excepted to reveals that the subject at the time under discussion by the court was not contributory negligence but proximate cause. At the point in question the court was undertaking to define and illustrate the meaning of proximate cause in the law of negligence. He was not then attempting to define contributory negligence to the jury.

Appellant complains that in effect by this charge its defense of contributory negligence was eliminated. We do not find, however, that defendant pleaded contributory negligence in this case. As has been so often pointed out, the defense of contributory negligence, to be availed of, must be pleaded. To be a good plea it must, at least conditionally, admit negligence on the part of the pleader and avoid liability on the ground of the concurring negligence of the other party. It is essentially a plea in confession and avoidance. An approved definition is: "Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another combining and concurring with that negligence, and contributing to the injury, as a proximate cause thereof, without which the injury would not have occurred." 7 A. & E. Enc. Law (2d Ed.) p. 371.

The answer of defendant used this language: "Defendant alleges that any injuries received by plaintiff and any damage to his automobile were due to his own negligence and want of care, which contributed to his injuries as a proximate cause thereof without which the said injuries and damage would not have occurred" in the particulars set forth.

In stating to the jury the defenses of defendant, the trial judge said: "The defendant answers that complaint and it says, in substance, in its first defense that while Mr. Lawrence was driving his car on the highway at this time he ran into the defendant's train." (Then follows the narrative of defendant's position as to plaintiff's injuries and the claim of defendant that plaintiff's negligence and recklessness was the sole cause of his injury.)

The court continued: "Another defense is that his injuries were due to his own negligence and want of care which contributed to his injuries as a proximate cause in the following alleged acts of negligence; these are brief and I will read them to you. *** Then for another defense they say that his injuries were due to his wilfulness and wantonness on this occasion as the proximate cause of his injuries and reiterates these specifications, or acts of negligence as wilful and wanton on his part. The next defense is that at the time he was injured he was acting in violation of law by speeding his car in excess of the legal allowance of speed; and that by reason of these violations of law, which contributed as a proximate cause to his injuries he cannot recover."

The trial judge, it appears, construed the answer of defendant as not including the plea of contributory negligence. No exception was taken to this statement of the issues. Defendant cannot now complain. A charge, even if erroneous, on a matter not in issue, cannot be considered as prejudicial. Besides, defendant by its formal requests got the benefit of the principles for which it now contends and to which, under the pleadings, it was not entitled, upon proper objection. We find no reversible error here.

Among its specific requests to charge defendant presented the following:

"I further charge you that the statutes and ordinances regulating the speed and equipment of motor vehicles on the city streets and the public highways of the state are regulations for the prevention of accidents and concerning the responsibility therefor.

"Court: I charge you that.

"If, therefore, a motor vehicle is being operated in violation of the laws governing speed on the public highway, and a collision occurs whereby a person is injured the presumption arises that the failure to observe the law in such particulars was a proximate cause of the injury."

"The Court: I refuse to charge you that."

The trial judge charged the first paragraph of this request, but refused to charge the second. A specific exception is addressed to such refusal.

The language of the portion refused is patterned upon that of this court in McBride v. A. C. L. R. R. Co., 140 S.C. 260, 138 S.E. 803, 807, where it was said: "From our consideration of this question, we are satisfied that the proper construction of the statute leads to the conclusion that when a person is injured by a collision with the engines or any car or cars of a railroad corporation at a crossing, and the railroad failed to give the statutory signals at such time and place, the presumption arises that the failure to give the signals is the proximate cause of the injury, since such injury is the natural and probable consequence of the failure to give the signals and is the very injury intended to be prevented by the statute. It must be borne in mind that this presumption does not mean that the causal relationship between the failure to give the signals and the injury is shown conclusively. The presumption merely establishes a prima facie case, which may be overcome by testimony, whether given for the plaintiff or for the defendant."

With particular reference to the crossing signal statute, Mr Justice Stabler, speaking for the court, further observed in the McBride opinion: "The signal statute, as shown by the title to article 7 of the Code, is a regulation for the prevention of accidents and concerning the responsibility thereof. The Legislature evidently had in mind that injury to person or property was very likely to occur at a...