Mew v. Charleston & S. Ry. Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JONES, J
• Citation: 55 S.C. 90,32 S.E. 828
• Decision Date: 27 April 1899
• Parties: MEW. v. CHARLESTON & S. RY. CO.

32 S.E. 828
(55 S.C. 90)

MEW.
v.
CHARLESTON & S. RY. CO.

Supreme Court of South Carolina.

April 27, 1899.

Electors — Qualifications—Registration—New Trial — Disqualification of Juror — Negligence—Pleading —Variance—Trial—Instructions — Master and Servant — Injuries to Servant—Assumption of Risk—Questions fob Jury—Railroads—Brakes.

1. Const, art. 2, § 3, provides that every male citizen above 21, and possessing the qualifications required by the constitution, shall be an elector. Section 4 states the qualifications for suffrage, among which is registration. Id. sub-sec, c, provides that up to January 1, 1898, all male persons of a voting age, possessing certain qualifications, shall be entitled to register and become electors, and makes those so registering qualified electors for life, unless afterwards disqualified. Subsection f provides that a duly-registered elector, who still remains a qualified elector, may have his certificate renewed in certain cases. Section 2 provides that every qualified elector shall be eligible to any office. Article 16, § 1, provides that amendments shall be submitted to the qualified electors, and, if a majority of the electors qualified to vote for members of the general assembly shall vote in favor thereof, they shall be deemed adopted. Held, that registration was an essential qualification of an elector, though article 2, § 8, provides that the general assembly shall provide by law for the registration of all qualified electors.

2. Under Const, art. 5, § 22, providing that each juror must be a qualified elector, under the constitution, and article 2, which makes registration an essential qualification of an elector, a party in a civil action is not entitled to a new trial because a juror was not registered, though such fact was unknown tcf the party during the trial, since it could have been known by a search of the registration books, which are public records.

3. A complaint alleging as one cause of action that, because of insufficiency of brake-men, the conductor was obliged to act as such, and go on top of the train, which place was rendered unsafe by insufficient brakes, and that a defect in the roadbed caused the train to give a sudden lurch, throwing the conductor off and injuring him, is not uncertain, as stating distinct acts of negligence, each severally capable of producing the result, but shows the acts to be co-operating causes.

4. Such complaint is sufficient as connecting the alleged acts of negligence of the company with the injury.

5. Code Civ. Proc. § 190, provides that no variance shall be deemed material, unless it has actually misled the adverse party. Section 192 provides that, where an allegation of the cause of action is not proved in its entire meaning, it shall be deemed a failure of proof. Section 194 allows the court, before or after judgment, to amend any pleading, when it does not change substantially the claim, by conforming it to the facts proved. A complaint against a railroad company for injuries alleged that the track was so constructed as to make a decided curve at a point where there was the highest grade, with low grades immediately before and after, causing a long train to jerk suddenly. The evidence showed that the injury occurred near to, but not at, the curve. Held a mere variance, and the court could allow an amendment striking out the reference to the curve; counsel for the company stating that he had not been surprised.

6. A party cannot complain that a charge was not given as requested, when its substance was given in another place.

7. A charge that if a conductor, after starting with the train, and before reaching his des tination, objected to taking on additional cars without additional hands, it was for the jury to determine whether he waived the obligation of the company to furnish sufficient hands, is not a charge as to the facts.

8. Gen. St. § 1499 (1 Rev. St. § 1681), requiring railroads to cause a sufficient brake to be attached to every freight car, except those having four wheels, requires such brake to be attached to gondola cars used to haul gravel, and to flat cars loaded with lumber, which cars have eight wheels.

9. A conductor, having protested to the train dispatcher that his force of brakemen was inadequate, was told to go on anyhow. He claimed that it became necessary for him to act as brakeman on the top of a car, and that a defect in the roadbed caused the train to jerk suddenly, throwing him off. Held, that it was for the jury to determine whether, by running the train without sufficient help, and with knowledge of the defect in the roadbed, the conductor assumed the risk.

Appeal from common pleas circuit court of Charleston county; R. C. Watts, Judge.

Action by Elliott L. Mew against the Charleston & Savannah Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Mordecal & Gadsden, for appellant

Legare & Holman, for respondent

JONES, J. The defendant company appeals from a judgment rendered against it in favor of the plaintiff for personal injuries received through the alleged negligence of defendant in the management of its train. A preliminary motion, however, was made to suspend the appeal for the purpose of allowing defendant to move the circuit court for a new trial on the ground that one of the jurors who sat In the case was not a qualified elector, under the constitution, for want of registration, and therefore not a legal juror. The affidavits submitted in support of the motion are quite sufficient to make a prima facie showing that the juror Gorse was not at the time of the trial registered In the county of Charleston as an elector, and that such fact was not actually known to defendant or its counsel at the trial. An examination of the books of registration after the trial disclosed the fact that said Gorse was not registered. Will this showing justify us In suspending the appeal for the purpose named? We think not, for the reasons now stated:

Article 5, § 22, of the constitution, provides. "* * * Each juror must be a qualified elector under the provisions of this constitution, between the ages of twenty-one and sixty-five years, and of good moral character." By article 2, §§ 3, 4, registration is made one of the qualifications of an elector. This is controverted by the other side, who contend that the constitution makes a distinction between "qualified electors" and "registered qualified electors." We cannot agree with this latter contention. Article 2, § 3, provides: "Every male citizen of this state, and of the United States, twenty-one years of

[32 S.E. 829]

age and upwards, not laboring under the disabilities named in this constitution, and possessing the qualifications required by it, shall be an elector." Then section 4 proceeds to state the qualifications for suffrage: (a) Residence; (b) registration; then (c) the qualifications for registration of those who apply therefor up to January 1, 1898, making those so registered "qualified electors" for life, unless disqualified by other provisions of the constitution; then (d) the qualifications for registration of those who apply therefor after January 1, 1898; (e) directing what managers of election shall require of every elector offering to vote. Then follows subdivision f, as follows: "The general assembly shall provide for issuing to each duly registered elector a certificate of registration, and shall provide for the renewal of such certificate when lost, mutilated or destroyed if the appellant is still a qualified elector under the provisions of this constitution, or if he has been registered as provided in subsection (c)." The argument, as we understand it, is that the above section 4 does not provide the qualifications of an elector, but the qualifications for suffrage, or the act of voting. But suffrage is the right to vote, not the act of voting; and it seems untenable to argue that "qualifications for suffrage" does not also mean qualifications for elector, especially when the constitution, immediately preceding, defines an elector (among other things) as one "possessing the qualifications required by it" (the constitution). Where else in the constitution must we look to ascertain the qualifications of an elector? We find in section 6 of this article who are disqualified for crime, etc., who come within the class of those "laboring under the disabilities named in the constitution"; but where shall we ascertain the "qualifications required, " unless it be in this section? The qualifications of an elector, under the constitution, are citizenship, age, residence, and registration, subject to disqualification for certain crimes unpardoned, Insanity, pauperism, and imprisonment, and subject to certain regulations in reference to the certificate of registration, and in reference to proof of payment of taxes when the elector offers to vote. If any distinction among qualifications is permissible, registration must have been deemed pre-eminent. The matter of reading any section of the constitution, or understanding and explaining it when read, previous to January 1, 1898, and of reading and writing any section of the constitution, or the ownership of property assessed at $300 by those applying for registration after January 1, 1898, are qualifications for registration, not qualifications for suffrage, except as the right of suffrage depends upon the qualifications of registration. The term "qualified elector" is frequently used In the constitution, and In every instance except one it means "registered elector." Take the article under discussion. In section 2, "every qualified elector shall be eligible to any office, " etc.; section 4, subsec. c, where it is provided that those who are registered previous to January 1, 1898, "remain during life qualified electors unless disqualified, " etc.; in section 4, subsec. f, where a duly-registered elector, still remaining a "qualified elector" (i. e. not disqualified under...