Thackston v. Port Royal &c. Railway Co.

The opinion of the court was delivered by Me. Justice Pope.

This action for damages came on to be heard before Judge Izlar and a jury at the October, 1892, term of the Court of Common Pleas for Spartanburg County, when a verdict for the plaintiff was rendered, and a motion for a new trial on the minutes was refused. Judgment being entered, a notice of appeal was given. The following are the grounds of appeal:

1. The jfidge erred in charging the jury: “If you should *87 conclude from the evidence that the deceased came to his death from injuries received in the collision through the negligence of the defendant, and that this negligence was the proximate cause of the injuries, then your verdict should be for the plaintiff ; if, on the other hand, you should conclude from the evidence that the deceased came to his death from the effects of malarial fever, and not from the effect of any injury received in the collision, then your verdict should be for the defendant, etc.” — the error being that the cause of Mr. Boon’s death, whether directly from the injury, or from the effects of disease, are in this statement placed on the same equal basis of proof, his honor ignoring and contradicting herein other portions of the charge, in which the law is stated to be, that the preponderance of evidence must be that Mr. Boon died from an injury received in the collision. This charge, then, in connection with the next grounds, manifestly misled the jury.

2. In refusing to charge, as requested by defendant, “If the jury find that W. N. Boon was as likely to have died from any other disease than one arising from his leap, then their verdict should be for the defendant.”

3. In adding to his refusal to charge as above the words: “I cannot charge this request, but will say that before you can find a verdict for the plaintiff, you must be satisfied from the preponderance of the evidence that W. N. Boon died from the effect of injuries caused by the negligence of the defendant, and that this evidence was the direct or proximate cause of the injury. But if you should be satisfied by the weight of the evidence that W. N. Boon died from other causes not the direct result of injuries received through the negligence of the defendant, your verdict would have to be for the defendant” — -the error being, as with the first exception herein, of placing the cause of death, whether from injury received from his leap or whether from other causes on the same ground of proof; his honor defining “preponderance of evidence” to mean “weight of evidence,” when speaking of the cause as from the injury, and then stating, if the jury should be satisfied by “the weight of evidence” that Boon died from other causes, then the verdict should be for the defendant.

*88 4. In further adding to his refusal to charge, as requested above, the following words: “This request, as I understand it, ignores the evidence submitted, tending to show the cause of the death,” when, it is respectfully submitted, there is nothing in the request which ignores the evidence submitted in general, or of that which showed the cause of death.

5. In refusing to grant a new trial, when there is not a scintilla of evidence that Mr. Boon was injured at all by the leap which he took to avoid collision, and not a particle of evidence that this leap was the proximate cause of his death.

6. In charging, in substance, that the defendant must show of what disease the intestate died.

7. In charging: “While I felt it my duty to say this much in relation to the law bearing upon the issues raised by the pleadings in this case, I am persuaded that the case must turn, in a great measure, upon a question of fact;” intimating that, while he gave the law, they were not to consider it, but simply decide a question of fact.

8. In charging, the main and most important question is: “What caused the death of W. N. Boon?” and saying nothing of their duty to consider the question of contributory negligence.

9. In charging, in substance, in several places, that if plaintiff proved his intestate came to his death from injuries caused by the negligence of the defendant, that he was entitled to recover, ignoring the defence of the defendant that the deceased was guilty of contributory negligence, even if he came to his death by its act, which defendant denies.

W. N. Boon was the engineer of a train owned and operated by the defendant railroad, the Port Royal and Western Carolina Railway Company, on or about the 4th day of October, 1890, and while making a trip from Spartanburg to Augusta, at about 10 and 32 minutes o’clock at night of that date, at a point on the railway near Waterloo, in Laurens County, in this State, while running strictly on the schedule prepared by defendant, met another train coming from Augusta, on its way to Spartanburg, which latter train, according to the testimony of the conductor in this cause, collided with the train under the charge of engineer Boon, because the conductor in charge *89 of the train from Augusta having fallen asleep, thereby neglected to take a side track, that the train under engineer Boon might pass by in safety. To avoid the effect of a collision, the engineer Boon, after reversing his engine, leaped from his engine. At. first it was thought he was uninjured, but the next morning he limped, and on carrying his engine to Laurens, he complained to a coemployee “of his heel and his back when he stood up.” He lay over in Spartanburg, and then went to a small place in North Carolina, about 100 miles from Charlotte, to attend to some private business of his own, but was suffering-while he was there. He returned to his work as engineer on defendant’s road about 10th or 11th October, 1890, running-three nights in succession. On the 17th October, 1890, while in Augusta, he had what was thought a congestive chill, and had medical advice, but on the next day returned to Spartan-burg, when he took his bed, from which he never arose alive, for he died on the 24th of October, 1890.

At the trial, by reason of the issues raised by the pleadings, the plaintiff claimed that Boon came to his death by reason of injuries received while he was forced to jump from his engine to avoid the collision that resulted from defendant’s negligence, and the defendant claimed that Boon emerged from that collision “a perfectly sound and able-bodied man,” and that his death “was due to a congestive chill, or to malarial dysentery and congestion, or some other similar disease, the result of natural causes, and in no way connected with the aforesaid collision.” Much testimony was given on all these matters, and a sharp contest between medical experts was had as to the cause of Boon’s death. The judge’s charge is unusually clear, and, inasmuch as appellants have inserted blocks of it in their grounds of appeal, we desire the charge, in its entirety, reproduced in the report of this case.

1 We will now examine the questions raised by appellant. 1. In his fifth ground of appeal, he complains that the Circuit Judge denied his motion for a new trial, and the points upon which he relies relate to the testimony, its weight and effect. We have too often laid down the well recognized rule that the Circuit Judge, in considering the force *90 and effect of the testimony adduced at the trial, will not be interfered with by this court. It is only on questions of law, wherein the Circuit Judge may have erred, will this court interfere. Let this ground of appeal be dismissed.

2 2. The first ground of appeal is mainly made up of a quotation from the judge’s charge to the jury. Before further consideration of this ground of appeal, we deem it proper to state that this mode of raising an objection to a judge’s charge is very objectionable. This court is always pleased to have counsel to assist them by calling attention to the specific errors alleged against the court below; but surely some better method should be adopted by them than embodying a block of the judge’s charge in a ground of appeal, and then associate with such quotation counsel’s argument to show the judge’s error. However, we will proceed to consider it. We have read'the judge’s charge with special care.

3 When it is construed as a whole, it betokens unusual care on the part of the judge to have the jury apply the law governing this class of cases correctly. Of course, the propositions of law must be stated clearly, and to do this such propositions must be orderly presented. Sometimes an apparent repetition is required to do this. These propositions proceed step by step. Having once or twice made a statement of the law, the Circuit Judge then goes a step further, and need not repeat what he has already made clear. So it was in the case at bar. The judge had already instructed the jury that “to recover damages for an injury done by the defendant company in a case like the present, the plaintiff must prove to your satisfaction by the preiJonderance of the evidence two things: 1. Negligence on the part of the defendant company. 2. That the injury complained of was the result of such negligence.” The Circuit Judge immediately afterwards explains that the negligence must be the proximate cause of the injury, and explains what proximate cause means. He then carefully calls the jury’s attention to the effect of contributory negligence by the plaintiff, and shows how it will operate to discharge the defendant company from any negligence on their part. .We might go on and pile up the evidence as to the *91 fidelity of the judge in this charge to the jury in refutation of this criticism, but we will not do so. We cannot sustain this ground of appeal.

4 3. The nest error may be considered as embodied in the 2d, 3d, and 4th grounds of appeal. The defendant requested the Circuit Judge to charge: “If the j,ury find that W. N. Boon was as likely to have died from any other disease than one arising from his leap, then their verdict should be for the defendant.” Although the judge declined to charge in the language prayed for, he met their issue, for he immediately instructed the jury: “I cannot charge this request, but will say, before you can find a verdict for the plaintiff, you must be satisfied from the preponderance of the evidence — that is, the weight of the evidence — that W: N. Boon died from the effect of injuries caused by the negligence of the defendant, and that this negligence was the direct or proximate cause of inj ury. But if you should be satisfied from the weight of the evidence thatW. W. Boon died from other causes not the direct result of injuries received through the negligence of the defendant, your verdict would have to be for the defendant. [Italics ours.] This request, as I understand, ignores the evidence submitted tending to show the cause of death.” The sentence in this extract, immediately preceding the last sentence therein, virtually gives the defendant the benefit of the charge he sought, though not exactly in the form submitted in the request to charge. This right of selection by the judge must be allowed. It was not a captious or hypercritical act on his part, but, on the contrary, was intended to keep before the minds of the jury the issues raised by the pleadings and the testimony given in the cause. Let these exceptions be overruled.

5 4. The appellant’s 6th ground of charge is very general — too much so, under the rules of this court; but in overruling it, we will say we fail to find any evidence in the charge of the Circuit Judge upon which to predicate this attack upon it.

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*91 5. In the 7th exception we fail .to find any objection to the language complained of. There is no doubt that the law he had laid down would be remembered by the jury, but all *92 the judge meant by the language used was that the case, so far as the jury was concerned, would turn upon the view they might be led to adopt after having heard the testimony of a fact in the case — namely, the cause of Boon’s death. If appellant had reproduced the language of the judge immediately succeeding that quoted, all difficulty in his mind would have been removed.

7 6. As to the 8th exception, we must say that the judge was right, for the main question in the case was, “What caused the death of W. N. Boon?” It was distinctly raised in the pleadings as the pivotal question, and it was so treated in the testimony offered. Let this exception be overruled. 7. The 9th exception is not sustained by the case. The judge clearly set forth the defence of contributory negligence.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.