Smith v. Southern Ry. Co.
| Decision Date | 06 August 1898 |
| Parties | SMITH v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Pickens county.
Action by William J. Smith against the Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.
T. P Cothran, for appellant.
J. P Carey and J. A. McCullough, for respondent.
The plaintiff sued here for $1,975 on account of a personal injury received by himself at a street crossing in Liberty S. C., by reason of a collision with a train belonging to the defendant, operated on the Atlanta & Charleston Air-Line Railway. The cause came on to be heard by his honor, Judge Ernest Gary, and a jury. Verdict for plaintiff for $500. After judgment, defendant appealed.
At the trial, and before it commenced, plaintiff admitted that his action was brought under our statutes requiring a railway company to signal the approach of its train by bell or whistle. Rev. St. §§ 1685, 1692. The first exception imputes error to the circuit judge for that he charged the jury "If he [the plaintiff] was not willfully and grossly negligent and careless, and contributed thereby to that damage, then I charge you that the law says that the railroad company is liable per se." We have examined the judge's charge with care, and find that he was careful to point out both the sections 1685 and 1692 of the Revised Statutes, by reading such sections to the jury. It is true, these sections do hold the railway company liable for injuries occasioned by its train running across public highways, and failing to ring the bell or sound the whistle, unless it is shown that, in addition to a mere want of ordinary care, "the person injured, or the person having charge of his person or property, *** was at the time of the collision guilty of gross or willful negligence *** or unlawful act contributed to the injury." (The italics are ours.) 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 fails thereafter to charge requests embodying the law which he has already charged. It seems to us that it will not 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 "and" and "or" should be carefully noticed, then, in such an instance, it would be error; but as, in the case at bar, and under its surrounding facts, for the circuit judge to ignore this distinction, if error at all, is harmless error, we must therefore overrule this exception, so far as this alleged error is concerned. Nor do we see that there was any reversible error in the fact that the trial judge...
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