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Fox v. Railroad Co.

Fox v. Railroad Company

Fox v. R.R. Co., 4 S.C. 543 (1873)
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Court
Supreme Court of South Carolina · State Highest Courts
Decided
November 14, 1873
Judges
Moses, Willard, Wright
Citations
4 S.C. 5431873 S.C. LEXIS 47
Cited by 0
Headnotes
An error of law in the Judge’s charge to the jury cannot be made a ground of appeal xmless it be excepted to before the jury retire to their room, nor can a failure to charge a particular proposition of law be assigned as error unless the Judge, on request, decline so to charge.
Summary
Before GRAHAM, J., at Charleston, July Term, 1872. Action by Lawrence Fox, plaintiff, against the Savannah and Charleston Railroad Company, defendant, to recover damages for an injury to the plaintiff as a passenger on defendants’ road. Evidence was given on both sides, and the Circuit Judge charged the jury upon the law of the case. The defendant made no exception to the charge, or any part of it, before the jury retired to consider their verdict, nor did it state any proposition of law, and request the Court so to charge. The jury returned a verdict of 15,000 for the plaintiff, and thereupon the defendant gave notice that it excepted, and would move the Court for a new trial, and, failing in that motion, Would appeal to the Supreme Court on certain grounds, which imputed error in the finding of the jury, and various alleged errors of law, as well in the charge to the jury as in the failure to charge certain propositions. The motion for a new trial was refused, and the defendant appealed on the grounds stated in his notice.

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Opinion of the Court — Wright

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The opinion of the Court was delivered by Wright, A. J.

The grounds of appeal submit errors of law, which, if they arise in the case, can only be heard in this Court when they are brought before it through the prescribed, and, therefore, appropriate course. When the objection is insisted on, as is done on behalf of the respondent here, the Court must necessarily regard it, if it is sustained by the authority of its own ruling and decisions. A party to avail himself of an error in law, made by the presiding Judge in his charge, must except to it before the jury retire to their room, and, so a failure to charge in a particular manner as to propositions of law, cannot be assigned as error, unless the Judge, on request, decline so to charge.

The absence of these observances, when insisted on here, and interposed as an objection to the appeal, if sustained by the fact, is fatal.

This has been the ruling of the Court in several cases, among which are Madsden vs. Phoenix Fire Insurance Co., 1 S. C., 27, and Abraham & Son vs. Kelley & Barrett, 2 S. C., 238.

As we do not regard ourselves at liberty to consider the points submitted,

The motion must be dismissed.

Moses, C. J., and Willard, A. J.. concurred.

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