Dodenhoff v. Nilson Motor Exp. Lines

• Decision Date: 24 March 1939
• Docket Number: 14848.
• Citation: 2 S.E.2d 56,190 S.C. 60
• Parties: DODENHOFF v. NILSON MOTOR EXPRESS LINES et al.
• Court: South Carolina Supreme Court

2 S.E.2d 56

190 S.C. 60

DODENHOFF v. NILSON MOTOR EXPRESS LINES et al.

No. 14848.

Supreme Court of South Carolina

March 24, 1939

Julian S. Wolfe, of Orangeburg, for appellants.

A J. Hydrick and M. E. Zeigler, both of Orangeburg, for respondent.

BAKER Justice.

The record in this case consists of the pleadings, the charge of the presiding Judge, and the exceptions. All exceptions are to the charge of the trial Judge.

Exception 1 alleges error in that the trial Judge in his statement of the law regarding the required lights on certain trucks stated: "For instance, it says that between the hours of half an hour after sundown and until half an hour before sunrise you must drive with lights on your car or truck. When it comes to a truck they must have extra lights about the top and the back, showing the height of the truck and size."

The complaint alleged the operation of a truck without sufficient lights. We do not know if respondent relied upon this allegation of negligence, but the statute (Section 1632 of the Code) regulating the operation of trucks having a capacity of two tons, and motor trucks with trailer attached requires such trucks to carry additional lights "displayed on each of the foremost front corners thereof a green light, and on each of the extreme rear corners thereof a red light," between certain hours provided in the Statute.

The appellants rely particularly on the case of Keel v. S. A. L. R. Co., 108 S.C. 390, 95 S.E. 64, 65. In that case in passing upon an exception complaining of error in the charge of the presiding Judge, this Court stated: "He read the statute to the jury, and that was sufficient. He had the right to read the statute to the jury, or, if the language of the statute was embodied in his own language, this was sufficient. Mercer v. Southern Ry., 66 S.C. [246], 252, 44 S.E. 750."

In the instant case the statute was not read, but the language of the statute was embodied in the trial judge's own language. If appellants felt aggrieved thereby, it was their duty to call it to the attention of the trial Judge, when he gave them the opportunity of so doing at the conclusion of his charge. See Smith v. Oliver Motor Co., 174 S.C. 464, 473, 177 S.E. 791, and cases therein cited.

Appellants' second exception alleges: "That the Court erred in charging that 'when a person violates that statute law of the State and as a result of such violation an injury is done to a person or to their property, the law says that is negligence per se, that is, negligence in itself, and is presumed to be the proximate cause of the injury,' his Honor failing to state that the presumption is rebuttable until he so stated later on in his charge, thereby fixing in the minds of the jury that all that was necessary in order to bring a verdict against the defendants was that the defendants violated a statute, all of which was confusing and greatly prejudiced the rights of the defendants." (Italics added).

While charging the law of presumption arising out of the violation of a statute, the trial Judge stated to the jury in connection therewith, the following: "That, however, is a rebuttable presumption, and it is always a question for the jury to say, from all the circumstances in the case, whether or not the violation of the law relative to the use of a motor vehicle on the highway was negligent, and whether or not it was the proximate cause of the injury."

We quote with approval from Haynes v. Kay, 111 S.C. 107, 111, 96 S.E. 623, 624: "*** We have often said that all the law applicable to a case cannot be stated in a single sentence or proposition, but the charge must be considered as a whole."

Appellants' exception 2 is overruled.

Appellants' exception 3 is as follows: "That the Court erred in charging as follows: 'If he did acts of negligence which were the proximate cause of the injury then the defendants would be liable. That is the primary question that you must determine. And you must determine whether or not the defendant the Motor Company by its driver, its agent, violated any of the statute laws of the State as specified in the complaint. If he did violate them then I charge you, as a matter of law, that there was negligence and a presumption that it was the cause of the injury. But you must go further than that and you must say, from all of the facts and circumstances of the case whether or not it was negligence, that is, his failure to use due and proper care, if he did so, and, further, whether or not such negligence was the proximate cause of the injury.' The error being that the language as used by the Court was greatly in favor of the plaintiff and prejudiced the rights of the defendants and tended to fix in the minds of the jury the liability of the defendants, and that the collision was the result of the negligence of the driver of the truck."

The trial Judge also charged the jury:

"These are statutory requirements. So, when a person violates the statute law of the State and as result of such a violation an injury is done to a person or to their property, the law says that...