Stanton v. Southern Ry. Co

• Decision Date: 03 January 1900
• Citation: 34 S.E. 695,56 S.C. 398
• Parties: STANTON et al. v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

34 S.E. 695

56 S.C. 398

STANTON et al.

v.SOUTHERN RY. CO.

Supreme Court of South Carolina.

Jan. 3, 1900.

TRIAL—INSTRUCTIONS TO JURY—PROVINCE OF JURY.

1. A charge that, if the evidence raises a mere probability, it is not sufficient, but that the probability must amount to proof, is erroneous, as invading the province of the jury.

2. Where an instruction asked is partially correct, the court is not bound to give as much thereof as may be correct.

Appeal from common pleas circuit court of Fairfield county; Ernest Gary, Judge.

Action by D. A. Stanton and others against the Southern Railway Company. From ajudgment for plaintiffs, defendant appeals. Affirmed.

B. L. Abney and John P. Thomas, Jr., for appellant.

Ragsdale & Ragsdale, for respondents.

GARY, A. J. This was an action for damages caused by fire communicated by defendant's locomotive, and injuring plaintiffs' lands. The jury rendered a verdict in favor of the plaintiffs, and the defendant appealed upon the following exception: "The defendant, in pursuance of the notice of appeal heretofore served in the above-entitled cause, hereby excepts because the presiding judge refused to charge the second request of the defendant, to wit: 'If the evidence raises a mere conjecture, or a suspicion, or even a probability, that the fire was caused by the locomotive engine of the defendant, that is not sufficient to enable the plaintiff to recover. The probability must amount to proof.' " The charge of the presiding judge shows that he practically charged what was contained in the request, and the appellant was, therefore, not prejudiced by such refusal.

There is, however, another reason why the exception cannot be sustained. If the defendant had omitted the word "probability" in the request, the circuit judge could very properly have charged it, but with that word in the request he could not have charged it without invading the province of the jury. The inference to be drawn from testimony depends in every case, more or less, on probability. The preponderance of the evidence may depend upon the probability, and, if the circuit judge had undertaken to instruct the jury as to the effect of probability, he would nave commented on the facts, and invaded the province of the Jury. The circuit judge was not bound to charge a request unless the propositions of law therein were sound in their entirety. He was not bound, as has been held time and again, to charge so much of a request as contained sound propositions of law....