*1 v. Railway Co. Syllabus. S. C. Constitution of 1895 attempting pass special instead of general laws, such efforts So, were therefore, nugatory. when the in legislature re-enacted provisions of sec- tions 1273 and 1893,'and 1274 of the Revised Statutes confined the operation of said sections to the counties of Anderson, Chester, Greenville, Oconee, Union, Fairfield, Laurens, Abbeville, Newberry, Pickens, Spartanburg York, all the other exempting counties of the from State operation 1274, sections 1273 and such action of the legislature was null void, at because variance with of the provisions Constitution of this in section State of article III. It is not necessary to repeat the views so announced recently of this opinion MSS. Court in the Q. case v. Hammond, W. State which construed the of our provisions Constitution as it affected section 1275 of the Revised of this adopted Statutes State 1893.
It is the Court, of this judgment judgment Circuit Court be affirmed. v. CHAR.
BODIE & CAR. RY. CO. WEST. may granted 1. A damages. New Trial Pope Mr. Chief Justice dissenting. Appliances—Methods.—In 2. an action Evidence — railroad company inj ury negligence requisite from in failure to furnish a special work, promise, competent force hands to do after it is te doing show usual methods on this and other roads of the same work. Jury Judge.-
3. is not error for a trial to refuse to —Circuit —It require place accident, deciding to visit the of an after they so, upon informing place do their could him that a view of the would be of no benefit them. Appliances Contributory Negligence — —Proximate Result— Charge duty as to of master Methods —Section Foreman. — proper appliances; ordinary contributory negligence furnish care and servant; result; proximate in use of them natural and Bodie adopted by doing work,
methods servant in case section *2 inj by falling by inadequate foreman ured of his one of hands caused force; approved. Assumption 5. of Risks —Section Foreman. —Performance work by hands, section foreman with insufficient is not a defense to an against thereby. him
action master for occasioned being verdict, Triae. —There evidence to sustain a New refusal of Judge to set it aside will not be disturbed. Rehearing refused. Before McCullough, Greenwood, special Judge, May, 1902. Affirmed.
Action Bodie W. Charleston and against West- Josiah ern Carolina Railway.
From defendant judgment plaintiff, on the appeals following exceptions:
“1. The defendant to and excepts from order appeals aside the judgment Judge Gary verdict rendered setting trial, on trial before him and a new on the granting that the Circuit did not have the power such new trial for amount of grant rendered, verdict and it was of law error for him to do so.
“2. The defendant to the excepts of Honorable rulings A. Joseph in relation to the McCullough, presiding Judge, introduction error in such testimony, alleges rulings as In Bodie, follows: (a) allowing plaintiff, to testify, defendant, objection as to was the what rails, usual and customary way handling loading that the in manner which he was rails when he was handling manner, was the usual and injured customary testimony as is the follows: AVhat usual being ‘Q. and ordinary way? object Mr. to that also as Grier: We incompetent. Objec- A. I tion overruled. like was them.’ The error handling Just Circuit Judge by allowed being ruling testimony the usual and rails, method of customary handling care in upon question plaintiff’s ordinary handling rails he In injured, when was (b) the wit- allowing Raieway
Exceptions. C.S. ness, Bodie, hand- that the method he adopted testify these rails was usual and on the C. & C.W. ling customary Railroad, as has method follows: What been the adopted ‘Q. C. & C. Mr. Grier: Railway? object W. We has Objection overruled. What been incompetent. Q. the custom there ? A. The of load- adopted customary way it the I a few minutes just rails was to load ing way spoke in in ends at time. We loaded .ago usually loading —-both no other The error as to way.’ testimony being allowing the custom of other of this defendant employees agents rails, óf care question ordinary handling rails he was injured, when handling (c) *3 witness, Melton, the the D. to what was testify W. allowing of rails on a car of the Central customary way loading push other of Railroad and roads—the Georgia testimony being as ? A. I follows: What road did work on worked ‘Q. you for the Central of Did work for the C. Georgia. Q.- you Well, ? A. of that at that time. & W. C. was road part is the usual rails on What and of Q. customary way loading car? to that the push object on incompe- We usual Objection overruled. What the and tency. Q. n customary car? A. it rails on Pick way loading push it it the at a and and load on car. One end up carry Q. at time, or ? A. I never have one end picked altogether up a time. I the rail and it just whole carried and picked up n load on the car. it is the usual What and Q. customary Was it ever done other A. saw way? any way? Always it that The eror in way.’ to being allowing testimony this in custom on other railroads or on road handling rails, care of the in question ordinary rails In injured, when he was (d) handling allowing witness, P. to as to the usual cus- testify W. Ellenberg, rails, manner of in answer to tomary handling following is the usual to wit: man- ‘Q. What questions, customary rail ? ? ner of Do know how is done you What handling is the The error testi- customary way?’ being allowing the custom on other roads or this to road in mony R.EP.] rails
handling upon the question care of the ordinary rails handling when he injured, (e) witness, allowing B. on cross-examination, to Ogilvie, J. that testify force of larger hands would have been safer case, in this because such force would be able to catch and rail, hold up'a if one falling hand should The error slip. that there being was no such negligence com- alleged was, and such plaint, testimony therefore, incompetent.
“3. The presiding Judge, Honorable A. McCul- Joseph erred in not lough, to requiring visit jury place after injury, ruled in defendant’s favor having objection plaintiff, so, should do they to determine allowing jury this question for themselves. The error being: that it (a) decided Having was necessary to a just decision of the cause for to visit jury place, it was error of law for the Circuit Judge subsequently allow to determine the jury question whether would they themselves, so view the or not for place Because the (b) record shows that it just decision this necessary cause for the view and the Circuit place injury, held, so it was error of for him to having law allow have voice in determining question.
“4. The Honorable A. presiding Judge, McCullough, J: erred in the ‘If charging follows: conclude that you work, defendant not did the to this extra require plaintiff do motion, the so did his own plaintiff freely, voluntarily, of do, then, without the so to required by why defendant being course, of under the the complaint, plaintiff not would recover, entitled to because he his action that bases upon however, If, conclude that the theory. you defendant did work, the to do this extra then plaintiff there imme- require followed a and which the diately duty obligation imposes law is, the defendant and that that the railway company, upon would furnish to the company defendant railway plaintiff suitable, and for the appliances safe appropriate purpose that error that his work’—the Honor assumed doing being in that the in which the as a fact the case plaintiff was work SO—66 C.
Exceptions. work, one when was extra when it was injured engaged extra or issuable facts in the whether such case work was and a incident to work general was mere part road-bed, plain- which had been committed to the up keeping facts, the pro- in violation of tiff—thus charging such charge. of the prohibits vision Constitution A. McCullough, Honorable “5. presiding Judge, J. ‘That it the duty in as follows: was erred charging appara and use such machinery, of the defendant to adopt suitable and tus, proper tools and means were appliances, it required of the business which prosecution life to and do, to reasonable of safety with degree plaintiff it was the of the defendant duty and security against injury, care and to not exercise due diligence and to plaintiff were safe and furnished ascertain whether appliances That in some cases the error while (a) suitable’—the being: him to work assume machinery given employee may suitable, he and is not bound to inquire is safe and with not, does not to this it is so or such principle apply whether furnish case, to was alleged negligence failing where hands, existed, if it the inefficiency, and a sufficient force where the himself was plaintiff and patent, particularly work, him instrumentalities in control given with master measure stood position some thereto, all it 'is of an cases duty reference (b) com exercise due care and about work to employee error law for the him, and was mitted to not that it was the duty the jury instruct ascertain whether the diligence due care exercise suitable, The doc were safe (c) furnished appliances case, error of not stated was applicable trine uncontradicted law, for further reason testimony had some that he full time showed knowledge, of the *5 the of force alleged insufficiency the injury, before him. to committed A. McCullough, Honorable The Judge,
“6. presiding J. as fol- the on the of plaintiff, jury, request erred charging if lows: ‘That the that jury find the was injured by an accident the from concurrent of a resulting negligence fellow-servant, defendant, and of the the defendant is liable as it were sole though offender.’ error The being: (a) The leaves out of charge account the entirely question cause, proximate and instructs the in effect jury that plaintiff can recover for an accident from any resulting previous defendant, act remote if negligent it proximate, fellow-servant, concurred awith act aof negligent (b) The instruction more erroneous and hurtful to the de- fendant because the in his presiding Judge elsewhere charge instructed that an jury accident and a act are negligent other, different, to entirely one from the distinguished The effect of the (c) was to instruct the that the charge jury accident, defendant would be liable It decides (d) all questions defendant, practically instructs render verdict in favor of plaintiff, inasmuch as one of defenses of the was that railway company cause of the the accidental injury was fellow- falling servant. The
“7. Honorable A. presiding Judge, McCullough, J. erred in refusing charge defendant’s third as request as follows: ‘The cannot presented, find for the plaintiff, unless the evidence shows that de- preponderance fendants were as guilty negligence the com- charged and that such was the plaint, negligence proximate cause of and in to’ injury, order warrant that finding negli- complained proximate was the cause gence injury it must alleged, appear natural and of the probable consequence alleged negligence, foreseen,’ have could been and have been ought and in the same by out the modifying striking words: ‘and that it have to have ought could been been foreseen.’ The The error modified makes being: (a) charge the defend- liable, whether the ant as the result alleged injury could have and been alleged negligence ought have fore-r seen or not. (b) request presented contained a *6 Railway Co. Bodie v.
Exceptions. C.S. law, of have been charged sound proposition ought modification. without A. McCullough,
“8. The Honorable presiding Judge, J. in the defendant’s fourth as follows: request, erred refusing the cause the the Tf the believe that was coworkers, the and that plaintiff’s accidental one of falling fall caused the of the railway was not negligence error the cannot recover.’ The plaintiff then company, contained a sound proposition The being: (a) request submitted, The law, and have been charged should (b) The emasculates modification request, (c) modification the fall, the for makes defendant liable consequences itself, fall and allows for recovery not liable although the complaint. not in alleged negligence A. McCullough, The Honorable “9. presiding Judge, J. as requested by in to charge jury, erred refusing defendant, Tf the the force as follows: believe safe for to the was sufficient and hands furnished plaintiff hand a different from that which way in in work doing if recover, cannot the evidence then the plaintiff he adopted, from his use of the force for resulted his injury shows also unless evidence way, a more the work dangerous or required by employer that he was directed shows same hazardous way,’ modifying such more adopt the error being: ‘negligent,’ therein word inserting law, and a sound contained proposition request (a) The de- it as presented, not to (b) error charge a more instruction that use of to' the was entitled fendant work, knew of a when the plaintiff for doing hazardous way a recovery, that would bar in itself way, negligence safe that before could be the jury In instructing (c) show defendant must contributory negligence, barred than adoption part more negligence to be dangerous. work known for doing a method refusing erred charge “10. The presiding Tf follows: request, negligence seventh defendant’s there was complains the plaintiff —if on the negligence part railway compapny long —was *7 before to of enough admit injury plaintiff’s guarding it care, this, the use failed to ordinary he do of such knowing negligence there railway company, can no recovery.’ error con- The The being: request (a) a law, tained sound and it proposition should have been as In charged presented, view of the fact that the (b) of occurred to negligence complained long prior plaintiff’s contained a injury, request sound of law proposition made, to the as applicable case with reference to the question and its refusal contributory negligence, eliminated that defense in the most material aspect of defendant’s case.
“11. The Honorable A. presiding Judge, McCullough, J. to erred the defendant’s refusing charge eighth request, follows: ‘The Courts will not take better care of a man himself; hence, than he takes of if an that employee knows in which he work is or that the engaged dangerous, appliances used him are insufficient, dangerous fails to exercise care and observation ordinary to protect after recover; himself such he cannot knowledge, and if the here, such find conditions exist their to verdict should be for the defendant.’ The error con- being: (a) request a law, tained sound proposition and should have been charged presented, view of the fact that the (b) of occurred to the negligence complained long prior plain- tiff’s injury, contained request sound proposition made, law, to the case as with applicable reference to question and its refusal elimi- contributory negligence, nated defense in the most material aspect the defend- case, ant’s It is the of an to (c) duty exercise employee care, ordinary even when the master has him defective given work, with which to and the refusal of the appliances Circuit this to the present charge jury, ignored prin- ciple relieved from' the exercise of care, if the master had ordinary been previously negligent furnish sufficient force. failing
“12. The Judge, Honorable A. presiding McCullough, J. C.
Argument of Counsel. trial, the testimony erred in because new refusing grant shows taken in its in favor of the plaintiff strongest light was not the negligence cause of proximate defendant, of one of the accidental falling error of law to refuse fellow-servants, and was plaintiff’s on this ground.” appel Messrs. Grier J. Sheppards Simpson, & cites: As aside a verdict lant. Mr. Simpson setting P., P. lawc & Ency. at common daumages, inadequacy of Stat., 39; Code, Stat., 253; 14 our 764. Under Statutes: Proc., 1902, 1902, 2734; 286. Decided cases: Code of *8 56; McC., ; McC., 516; 3 62; 2 466 2 N. Harp., & Bay, Bay, Bail., raised on this 547; 2 216. This question may 542; C., C., 607; C., 36 150; C., 20 19 17 S. S. appeal: S. S. C., 51; C., 149.' have al- 130; 46 should 59 S. S. Code, 1902, 2950. accident: to visit place lowed of P., 576; C., 563; 2 P. 57 61 & Ency. on S. Charge facts: C., C., 461; 230. ascertain appli- 58 Plaintiff must S. S. if R., It was 3 on R.- 1716. duty sufficient: Wood ances are know- care to protect to use ordinary himself after on Con. sec. 370. Beach Neg., ledge of defective force: is error: evidence cites: incompetent Mr. Grier Receiving C., at issue and 538. connection betzveen 32 No S. facts Ev., 52; 1 sec. 23 Green. objection: over Law. proved facts C., 153; C., 488; As 708; C., 61 45 278. Ed., 60 S. S. S. 106 N. master negligence to combined fellozu-servant: 159; Wis., 510; Wis., 61 270; 27 W. 700; Cush., 3 46 Y., R., 500; Y. 305; A., R. 32 N. 817. Va., Liability 7 S. L- C., 54 injury: cause S. proximate arises alone from Penn., 344; R., ed., 428, 440; 116 Am. 1 27 503; 16 Ency., 180; C., 338; Strob., 1 525. Con., 52 653; ed., 7 3 Par. on S. orders, method, zvithout more dangerous adopted If ; ; C., 442 61 489 Beach on Con. Neg., recover: S. cannot he C., 472; C., 18 Doctrine 214; 42 267. C., S. 34 S. S. here; but does not apply contributory negligence 311 1902. caused- alone 585; eel., 2 plaintiff’s 7 negligence: Fncy., Thom, Beach 58; on Con. Neg., 156; C., on 61 Neg., S. 486; la., 599; 66 A., 41 33; R. Y., 370; 82 N. L. 63 Fed.
R., 407; Ga., 98 655; 393; Ind., 49 R., 592; Fed. 112 128 S-, 91; U. S., 213; 100 739; U. C., 299; R., 32 59 Am. S. Kan., 129;
36 Ga.., 50 465. contra; Messrs. don Gray & Giles and Park, Caldwell & Court can set aside verdict insufficiency damages: 286; Code, 1902, 2734; Proc., Code 1902, C., 270; 59 S. 52;
1 466; 2 Bay, McC., 156; C., 4 Bay, 510; 46 16 S. ed., 1 589. Fncy., 61 objected Hvidence competent: S. C., 488; C., 169; 60 C., 443; C., 44 S. 60 S. S. should Whether view is matter place discretion with Code, 1902, 2950.
Judge: As to 38 exceptions charge: C., 213; 282, C„ C., 270; C., 169; 18 215; 34 S. 40 S. S. S. C., 467; C., 479; 42 61 R., 344; 21 C., S. 42 S. S. E. S. 414; ed., Whar. on 2 18, 19, 21; Strob., secs. 1 Neg., 550. There verdict, evidence to being support refusal C.,491; C., will not be reviewed: S. S. 407; C., 471; C., 20th, 1903, in this case opinion was filed April
remittitur until stayed petition rehearing *9 18, 1903. The of the Court was deliv-
May opinion ered by Gary.
Mr. Statement allega- Justice of facts. —The the tions of material to complaint, the consideration of the raised áre as follows: questions exceptions, “II. That at the time hereinafter mentioned and for a thereto, time prior plaintiff was long employed by said defendant as section foreman section of defeñd- railroad, ant’s said line of and as such foreman was ordered in addition to the other and duties required, imposed upon railroad, him, haul to and the side of said put piles upon rails, taken certain steel which had been from said track up and cast the same. alongside Raidway
Opinion of the Court. C.S. “III. That 1899, the summer during the said defendant furnished to the plaintiff force of six section hands to do usual and work ordinary section, on required said to prior orders giving special to haul and the said pile rails, steel the said defendant had reduced plaintiff’s force of three, hands to and had required plaintiff to take the place a hand and assist all such work as the services required more than three men.
“IV. That when the was ordered and plaintiff required by the defendant to haul and rails, steel pile said re- he quested said defendant to send him more help, protesting that the said steel rails were too one entirely heavy (each of them pounds for the weighing three hands more) handle, and himself to whereupon said defendant pro- work, mised two more men to assist in the said in the mean- time plaintiff to do and requiring perform the same.
“V. That it defendant’s to furnish to the duty plaintiff proper and the appliances help do and necessary perform work him, him and assigned required of and its said notwithstanding promise, and wilfully negligently its carelessly disregarded and his duty for more request help, failed to furnish to the plaintiff a sufficient force of hands him, to do the work required of the defendant was negligence the direct cause to the hereinafter set forth and- alleged.
“VI. That on the 15th day February, while the with the plaintiff, compliance defendant, orders of the hands, with the assistance of his three trying, one of carry the said steel rails up embankment for the purpose it on his car and aforesaid, it as loading hauling piling one of his said hands was overcome entirely and exhausted rail, of the said steel great weight account of the defendant to furnish a failure sufficient force to carry same, and fell to the ground, thereby the whole causing *10 steel rail of one end to be weight thrown on the plain- tiff, which his was knocked out right his leg place, back a injured, strain great put his whole upon body, causing a lesion of his and other internal kidneys organs.” the first trial
Upon rendered a jury verdict favor of $2,400, for but appeal Court Supreme (61 trial granted C., 468, new E., When 715). the case was tried the time, second found verdict in favor of the plaintiff $1,000, for which was set aside by on the if presiding Judge, plaintiff was entitled to all, recover sum at said amount was inad equate. On the trial third the verdict inwas favor of the $3,000. for The defendant appealed upon excep tions, which will be reported.
Opinion. This exception. raises the exception —First whether question Honor, the Circuit' had the Judge, power to trial new for grant in the amount
the verdict. 2734 of the Section Code of pro- Laws vides that “Circuit Courts shall have power to grant new 'trials in cases where there has a trial been for reasons for which new trials have been usually in the granted courts of law in this State.” Section Procedure, the Code of in subdivision contains the pro vision that “the who tries the cause his discre may, tion, motion, entertain a to be made minutes, on his to set aside verdict and a new trial grant upon exceptions, for evidence, insufficient or for excessive damages, motions, if minutes, heard can at be heard only (italics same term at the trial is had” ours). Pr., 764, While 14 of Pl. does & contain the Enc. language of Mr. quoted opinion Chief Pope, under Justice head of “Inadequate for Damages Torts —Common Law Rule,” it also adds thereafter these “But immediately words: the modern is that a rule be in actions may granted, torts, where the verdict is grossly inadequate, same reasons those where the verdict is governing exces Provisions,” sive.” And under the head of “Code on page 766, it also “The Code says: as to provisions new trials for inadequate damages appear general decía- merely *11 314 Railway v. Bodie Co.
Opinion of the Court. S. C. ratory common law. some the Codes have States been amended so as to new is trials where the verdict permit so as to indicate In the inadequate passion prejudice. amendment, absence of such a new be may granted on the that inadequate damages, theory the verdict is con Law, to the evidence In 16 trary (italics ours). Ency. 591 it is said: a (1st “Where verdict ed.), gives grossly to a it is as a inadequate much damages plaintiff, ground for new trial the motion of the as a upon verdict be, for excessive would motion of the damages upon In a defendant.” note on the same page, following Y., from McDonald v. 40 N. language quoted Walter, “A 551: verdict for amount inadequate stands grossly upon no nor in the rules of law or higher ground'in legal principle than verdict for excessive or justice amount. extravagant true, It is that instances of former less doubtless occur it is less because to make frequently frequently possible that the have erred. But when clearly appear grossly result, the case does show such justice plainly plainly that should denied what is his due as forbids be that the- defendant should what he not to be pay ought case v. R. Collins, of Benton 47 charged.” (N. A. L. 33, is well considered and sustains our views fully upon C.), this question.
The cases 'from our cited in the of Chief reports, opinion while the courts should Pope, cautiously showing Justice exercise the new trials for right grant verdict, amount of nevertheless down clearly lay that the Court has the a new trial in principle power grant See, also, R., C., 395, such cases. v. R. Stuckey C., cited, cases therein which even show that the discretion, in his conditions may, impose Circuit Judge trial. granting “a,” “b,” of error “c” Assignments exception.
Second first considered. The only objec- and “d” will the defendant to the introduction tion interposed by case, the trial of the the Circuit testimony This Court, objection it was incompetent. the testimony in' what particular failed spécify therefore, con- inadmissible, is, too to be general *12 this objection considering But sidered. waiving sustained, cannot be set forth in the exceptions, they grounds the method for oper- as the explanatory testimony the appliances. ating the witness “e.” In the first place, of error
Assignment hands not have been testified that a force of would larger case; and, the testimony in the second place, safer in the issues made the pleadings. to responsive Honor, the informed his pre-' The jury Third exception. that it of no that had decided would be siding Judge, they the accident them to visit the where benefit to place the discretion of the It was within wholly 3 occurred. to whether would send he presiding Judge occurred, and under the cir- where place view exercised. his discretion was properly cumstances spoke When the presiding Judge Fourth exception. work,” decide the question he did not mean to
“this extra fact, refer the extra mentioned to to work but only to the and which he had just explained jury, pleadings, an issue in the case. out as pointed he a sound proposi- The embodied charge exception.
Fifth further law, if the defendant desired tion stated, therein it should the principle 4 explanation that effect. have prepared requests in this exception The mentioned charge exception. Sixth of the with other portions in connection considered to be out in the seventh set charge reference charge. By had the benefit seen that the appellant bewill exception, the injury. cause of as the proximate the principle as modified conformed The charge exception. Seventh Strob., 525 v. Berkeley, in Harrison stated the principle C., R., v. R. in Pickens approval with (cited that the “It is required the Court E., says: in which 567), natural as for, should be well answered to be consequences Opinion of the Court. S. C. proximate. this I By understand, not that should be they such as upon calculation of chances would be found likely to occur nor such as extreme prudence might anticipate, that only should such they as have ensued one actually another, from without the occurrence of such extraordi- nary conjunction of circumstances or the intervention of any result, as extraordinary that the usual course of nature seem should to have been departed from.” Eighth exception. “I presiding said: refuse that, charge you I way. charge you request follows: Tf the believe jury, that the cause was the acciden- tal of one of falling coworkers, plaintiff’s fall, and that this I added, have or its consequences was not due to the negli- gence railway then the company, plaintiff cannot ” *13 recover.’ The last cited sustains authority charge modified.
Ninth His Honor exception. said : “I cannot you charge that I modification, way, that charge you with this will you pay attention now to the as I now read it charge to Tf the you: believe that the force of hands furnished the plaintiff was sufficient and safe for the work in doing in hand a different that from which way he then adopted, recover, cannot if the evidence shows that his resulted his injury from negligence, his use negligent from of the force for the work in a more dangerous unless way, evidence also shows that he was directed or his required by employer to such more adopt hazardous That is way.’ Take into you. consideration the facts as they presented themselves that occasion. Was he negligent? Did he lack care in the in ordinary which he way handled those rails? Gentlemen of the jury, them, did handling he fall that standard, short of the standard of care ? ordinary did, If find that he and that you then, caused the injury, why then, course, under I which have charge he given you, contributed to his own find injury. If'you on that occasion standard, that he fall short of didn’t taking everything consideration, he into handled the rails with force of v. hands as an man would have been just ordinarily prudent circumstances, he under the same would not be expected Then, a lack care. if was defendant guilty ordinary cannot him with you negligent, charge contributory negli- The gence.” request charge objectionable, reason that undertook to what facts would constitute say if that the evidence showed negligence. plaintiff’s Even resulted from his use of the force-for the work in more and also that he was not directed or dangerous way, the more hazardous required by employer adopt way, nevertheless, it was for the to draw the inference there- from, determine such facts and to whether constituted negli- gence. Co., case R. R.
Tenth exception. Youngblood C., 9, E., 232, that shows request charge refused, the Court uses this properly language: IX., of the Constitution sets at rest any “Sec. art. entertained on this doubts might question. an It provides ‘Knowledge by employee injured unsafe character or' condition of defective or an or shall be no defense to ways appliances, machinery, caused as to the conductors except action for injury thereby, or unsafe cars or of dangerous engineers charge engines words, them.’ other where voluntarily operated while injured voluntarily operating machinery empk^ee *14 condition, its unsafe his action for after of knowledge reason this shall not be defeated of fact. by caused thereby The is not used in its technical sense. The ‘defense’ word action,’ are to understood words, ‘shall no defense to be be not an action.’ The Constitution ‘shall defeat meaning, a with but with of pleadings principle not intend to deal did that a defendant on a motion for It not intend law. did of a state of facts the should benefit get nonsuit should be no defense to the action. declared Constitution to take from a defendant this was object provision The to defeat machinery, right suitable that failed furnish the that he did not act employee by showing an action by 318
Dissenting Opinion. S. C. with clue care in after voluntarily operating machinery of its defective condition. knowledge This is exception Eleventh likewise exception. disposed the case last by mentioned. There was to sus- exception. testimony Twelfth 6 tain the must, This finding jury. exception
therefore, be overruled. of the Circuit Court is judgment affirmed. concurs. Mr. Justice Jones This is the second Pope dissenting. Mr. Chief Justice visit of this action to this Court. The at the first trial $3,400 A trial gave new was ordered damages. C., 468, this Court. E., At the See S. S. time of a new before Judge Gary jury, Ernest $1,000 verdict for but on the plaintiff, given verdict, Circuit ordered new Judge trial. At the third trial Hon. A. before the McCul- Joseph $3,000 and a a verdict for lough, special Judge, jury, After on this last given plaintiff. entry judgment verdict, its the defendant notice of from the gave appeal trial, order of also its Judge Gary granting Ernest $3,000. from the for appeal were judgment Exceptions order of exhibited and the Judge Gary Ernest $3,000. for It is that if apparent the order of judgment untenable, erroneous, because there is Judge Gary Ernest no to consider necessity grounds appeal case, error, last for if was in the verdict Gary Ernest $1,000 verdict, still remains a valid and the judgment will, $3,000 must set aside as a We there- nullity. fore, first consider exceptions presented Judge Gary’s trial. order for new state
It will be what character of the proper action is as stated and the pleadings this Court judgment action, C., 468, E., as found in Jones,
Mr. issues as passing upon pre- Justice *15 Term, 1902. said: “This comes pleadings, appeal sented the by in favor of plaintiff from verdict and judgment to have an action for for personal injuries alleged damages sustained defendant’s negligence failing been through to do the work to furnish force laborers adequate foreman, track in the of the as section required rails, steel after for addi- application and hauling piling of defendant to tional' the and help plaintiff, promises by the same. The sixth the paragraph complaint supply That on 15th while day February, ‘VI. the alleged: defendant, the with orders compliance the plaintiff, the of his three hands to one carry with assistance was trying for the steel rails an embankment purpose of the said up aforesaid, car, it, as it on his and and hauling piling loading and exhausted hands was overcome entirely one of said rail, steel on account of said great weight furnish a sufficient force to of the defendant to carry failure same, the whole and fell to the ground, thereby causing the steel rail to thrown on the plain- end of one weight his tiff, was knocked out of place, right leg strain his whole put upon body, injured great back other internal organs.’ a lesion of his kidneys causing denial, the defendant interposed Besides general defenses, assumption special contributory negligence stated, at the trial before As risk after before knowledge.” $1,000 a verdict for jury, Gary Judge Ernest appeal then “Case” to the plaintiff. given Just moved on the minutes of counsel follows: “The plaintiff’s of inadequacy a new trial on the Court for of defendant’s objection Against amount of the verdict. and a new trial ordered— counsel, this motion granted, ‘Thé order: signing following presiding a verdict stated case rendered having the above with charged $1,000, and appearing in favor of all, to recover sum at if entitled he was Court Park on motion of Caldwell & is inadequate, said amount ordered, it is Giles, plaintiff’s attorneys, & and Graydon *16 v. Railway Co. Bodie Dissenting Opinion. S. C. ” the said verdict be set aside and a new trial -No granted.’ notice of and no appeal given taken exceptions were this trial, after a immediately order for new and no notice of nor appeal exceptions taken to said order until after the on the verdict judgment $3,000 for was entered. appeal to the order for a grounds new trial was
as follows: “I. The defendant to and excepts from appeals the order or judgment Judge Gary, aside the ver- setting dict the trial him rendered on before a new granting trial,, on the that the Circuit did not have the Judge power to new trial grant for of the amount n rendered, the verdict and it was error of for him to law do so.” In the error we considering will first ex- alleged, amine the as to the question to maintain right appellant appeal under law of this State governing appeals. Then we will examine the Circuit under right Judge, law, rules of common a grant new trial for in- awarded adequate damages jury. And what by lastly, the rule is as fixed our decisions and statutes on this subject.
1. Has the defendant the from appeal right Judge order for new trial Gary’s because awarded damages were We have stated that all before that the inadequate. defendant at the time of the did order new trial was made was to object to of such order. passage Gar}*- made, It must be manifest when this order was whole the second trial became as if proceeding nothing done, far concerned; had been so as the trial was that the action as it did when the just stood for Court awarded E., trial, C., 168, laid down in 61 $1,000 There verdict for the sum of for the been having out, this verdict was at Gary, before Judge wiped not a the instance of Was this material matter to plaintiff. Now, can no there doubt that it defendant? the defendant to have from that order appealed power after its passage. forthwith Civil Code of Section 1 and “D,” under subdivisions amply provide State character, an from an appeal order of this for in it is (1) provided, in a intermediate order decree “Any judgment, law case merits actions commenced involving * * *” Court of Common Pleas and in “an order affect- (2) action, substantial ing right when made such order *17 determines the action and from which prevents judgment * * * taken be and when such appeal might order grants * * *” trial refuses new Thus it is shown that an appeal could have been taken as as soon order was made. Could the defendant await safely the rendition of final judgment before special at he Judge McCullough, time gave notice from of appeal Gary’s order and his exhibited therefrom. ground appeal Under section 11 Civil Carolina, 7, Code of at 1, page South under subdivision it is provided, intermediate “Any order in a judgment, or decree law case in merits actions commenced involving * ** Court of Common Pleas there brought by original * * * if process Provided, no taken until appeal be final judg- ment entered, is the Court may, from such final upon appeal review intermediate order or decree necessa- judgment, not before rily affecting judgment from.” appealed this Court has construing held that such inter- provision, orders, mediate where no notice of appeal no given at taken the time the exceptions intermediate order was made, that an from such intermediate appeal order bemay the final taken with along judgment appealed Hyatt from — C., 150; 607; Fowler, C., v. v. McBurney, 17 19 Lee S. S. Jones, C., 136, v. 36 E., 430; 15 McCrady S. Morgan S. C., 49, E., Smith, 43, 59 v. other cases many hold, cited on Code Proc. We page therefore, that the order and that the appealable, could appeal be on the by this Court of the final heard hearing appeal this case. the Circuit Could base Judge (Judge Gary) Ernest the rules of the common
order law to orders relating trials ? for new because verdict In the 14th Practice, 764, volume Encyclopedia Pleading 21—66 Opinion.
Dissenting C.S. statement is made: for following “Inadequate Damages law, Torts —Common Rule. At common new Daw trials were not dam- granted awarded for torts ages inadequateorinsufficient; were least, at such was the rule as to for trespass damages slander, which were regarded analogous prosecutions It crime. was also said that where there was no legal measure of verdict should conclusive. The damages, Court, that a rule was to some extent influenced rule of small would not be where the verdict was granted to the costs for a new trial.” required proportion Again, work, at Trials same under “New page heading, Daw,” at Not Granted Common Inadequate Damages “There has never been a doubt following: exists at new trials for excessive power grant damages law, as in in actions ex delicto actions ex common well *18 contracto, smallness of seems not to have been but damages trial, at least in actions of until it trespass, for new ground for no reason than was made such statute better by apparently annis, et torts, at least actions of vi trespass that actions for to prosecutions as bearing analogy were considered doctrine, that crimes, it is an admitted whilst as to which of the accused trial the upon application be may granted that the inflicted the punishment by jury'is the upon is on the of the part no such allowed application too great, the assessed the is commonwealth, penalty by because authorities, cite other but many might too small.” We citations are sufficient to- it seems foregoing reflection law, that, under the common the proposition establish no to order. right pass had trial Judge as to new trials in cases the rule granting 3. What conceives his verdict to injuries, when personal in this both our decisions by established State inadequate, be remark, in year (see We statutes? and our our enacted General p. 253), Assembly at Large, Stat. after the of the from and several sitting “That follows: the said next Circuit Court shall ensuing, Courts Circuit and are declared to (have) they hereby and shall possess capable the same exercising complete and original final jurisdiction as possessed and exercised the Courts by of General of the Sessions and of peace Common Pleas now held in Charleston unless otherwise this by act directed custom, according usages practice said courts; law, custom or to the usage contrary notwith- The common standing.” law of England was made of force in this courts as govern State existed in they 1789; this State prior more generous holding courts in this provided State was this statute in by the year 1789, object of this was statute to clothe these new Courts of Common Pleas with all the power exer- formerly cised the Courts were by confined to the of Charles- city ton. This statute remained of until 1872, force the year when it 1868, in repealed. But formally year an act September, passed General by Assembly State, this which it by was enacted section Circuit “shall have power Judges new trials cases grant where there has been a reasons for which have new trials been usually granted courts law of the United at States.” page See Stat. Large, This provision was adhered to in the General or Revised However, in 1872. adopted Statutes the General Statutes of 1882 out changed words “of the striking States,” United “of the inserting words Courts of of this section 2113 of General Taw State.” See Statutes *19 of 1882. And so the law till stands section to-day. See 2734 the Code of 1902. Thus it is made for us necessary to see our what examination of decisions were the reasons trials for new have given granting they been usually We find two decisions when trials granted. new were verdicts because of in cases of granted per are 2 Keith, sonal These Bacot v. injuries. Bay’s Reports, 466; Frazier, v. 2 Nott & McCord’s Reports, Wallace former, there was a ferocious where assault and bat accorded the dollar one tery, jury only 824 v.
Dissenting C. Opinion. declared, “The Judges The Court of Appeals damages. in this case that the jury were opinion unanimously the severest and deserved had most shamefully, behaved partiality of the Court for glaring reprehension new usual to grant it was not And injustice. although this was yet the smallness of damages, trials on account of case, justice in which every principle so extraordinary a moment not hesitate that could they has been outraged, In the latter costs.” a new trial and without ordering case, for breach a suit to' recover damages was soundness of negro writing, warranty was, therefore, This ex contractu. unsound. was really The cent Court one damages. The found for jury “The on trial, point and said: testimony a new ordered uncontradicted, not author- and the was clear and own, their rule of arbitrary it and adopt ized to disregard clearly testimony. verdict unsupported by evidence, a new trial must be awarded.” the subject cases in our Now, reports come examine we excessive trials for verdicts for damages. granting v. found sustaining right cases will be Many — Bourke 230; McCord, 49; Harrison, v. Nettles Bulow, 1 Bay, 11; Law, v. Cheves Morgan Living v. Murray, Richardson 254; Rich., Rich., 581; v. ston, 2 Mayson Sheppard, Rich., 354; Martin, 1 v. Wilks, v. Fripp Poppenheim Law, 17; Ruff, Cheves 236; Ryan, Davis v. Scott Speer, said, “That have no Brevard, It Courts was well of a on account of solely annul verdict right allowed, is well set sum or insignificance smallness injustice where authority only gross have They tled. It the verdict courts power aliunde appears clearly there danger in no case is exercise, greater are loth to In actions function of jury. the exclusive of usurping is no measure of sums.” at there of the one bar the nature a value to the market, or law fixes custom, or “No it the exclusive and therefore, the law has made done, and, amount to name the to which of the jury province peculiar *20 a be entitled. No may other or judgment opinion must be substituted for the combined judgment opinion of the jury.”
But what is our statute on this subject? law Very is clearly provision made for the trial of a for grant new excessive the Circuit damages but no mention is Judge, made therein of the a power of Circuit new Judge grant trial for inadequacy verdict cases of personal Procedure, Our Code of injury. Civil under section subdivision, in the 4th provides, “The who tries the Judge cause in his discretion entertain a may motion to be made on minutes, to set aside verdict and trial new grant upon evidence, for insufficient exceptions, or for dam- excessive motions, but such if minutes, heard ages; can upon only at the be heard same term at which the is had.” This has been the this statute law of for thusWe years. State see that the motion the Circuit in the granted by case at bar was not sanctioned the common nor was it law State, sustained under the statutes of this as is shown by decisions of our Court. It not a usual course our Courts to for a new trial motions grant
of verdicts of An juries. examination of our will Reports fail an instance in a $1,000 to'disclose where verdict of suit $10,000 for has ever as an been held verdict. inadequate fact that this has Code of very every provided State in Circuit new trials for excessive power Judges grant no instance has in Cir- provided power damages, trials is a cuit Judges inadequate grant damages, circumstance. To admit the of this power existence strong therefor, a line of Circuit without Judges authority with fraught great danger. renders it This conclusion to consider unnecessary other questions presented by appeal. my opinion, must reverse and set aside all the follows we proceed- A. before and order ings special Judge-Joseph McCollough, Court, the action remanded to the Circuit with directions to out our the order that Court carry judgment, reversing
326 Robinson Howell. v.
Opinion the Court. C.S. for a new trial granted by with leave to Gary, Ernest the plaintiff to enter up on the verdict for judgment $1,000 rendered trial of this action had before the Hon. as Circuit Gary Judge. Ernest g Petition for was refused rehearing per followin order, curiam filed : May After careful examination of the petition for rehearing
in this case and the Court satisfied that no being 7 material fact question law of has either been
overlooked or disregarded. It is ordered, that dismissed, the petition be and that the order heretofore the remittitur granted revoked. staying AND
ROBINSON ALLEN HOWELL. Judge. mandatory Judge, of the trial on motion —-It Jurors —Circuit suit, party jurors of either to the to ascertain if are party. either related to Union, term, Before J., Re- January 1902. Buchanan, versed.
Action Allen by Robinson and Howell. Samuel From defendant, judgment plaintiffs appeal. Code, 1902, 2950;
H.Mr. cites : appellants, Scaife, B. C., 256; 90; P., 428, 477, P. App., & Ency. DePass, Mr. V. contra. B. 25, 1903. The Court deliv- opinion
May ered by on a This action demand money Mr. Justice Jones. for the
resulted in verdict and defendant. judgment