| S.C. | Mar 15, 1906
March 15, 1906. The opinion of the Court was delivered by The plaintiff's action commenced in the Court of Common Pleas of York County, in the State of South Carolina, on the 27th of October, 1904, has for its object the recovery of damages for personal injury by defendant's railway on the 22d and 23d of February, 1904, while the plaintiff was acting as night yard conductor in defendant's yard at Monroe, N.C. The case came on for trial before Judge Gage and a jury. A verdict for $5,000 was rendered for the plaintiff. A motion for a new trial was made upon the minutes of the Court by the defendant. This motion was overruled. Thereupon, after entry of judgment, an appeal was taken.
Let the charge and exceptions, except that subdivision (b) of the eleventh exception must not be included, having been abandoned by the defendant at the hearing, be set out in the report of this case. We will now examine these exceptions in their order in groups as follows:
I. Exceptions 1, 2, 3, 4. II. Exceptions 5, 6, 7, 8, 9. III. Exception 10. IV. Exception 11. V. Exception 12. VI. Exception 13.
I. To understand this group of exceptions, it may be said that the contract between the plaintiff and the defendant was *463 an oral contract made at Abbeville, S.C. by one Sellers, the train master of the defendant company. Under this contract the plaintiff first did service as a flagman and thereafter he was appointed night yard conductor in the yard at Monroe, N.C. The duties of that position amongst others were that the plaintiff should make up all trains for the defendant in the night time, and in making up such trains he would have two brakemen, and also that a yard engine with an engineer could be used in moving trains or parts of trains. While the night conductor was making up a train in said yard in Monroe, N.C., he only had one brakeman and was himself doing the work of the second brakeman; that this work was required to be speedily done, only about thirty minutes being given within which trains must be made up; that the plaintiff sent his one brakeman in another part of the yard to give signals to the engineer of the yard engine; that plaintiff himself went in between two cars to carry out a bulletin of the defendant company which required the air brakes to be uncoupled by hand, and he had just succeeded in uncoupling said air brakes between the two cars when the engine, without warning to him, or orders from him, or signals from him, with great force drove the cars, just uncoupled, together, throwing the plaintiff down upon the ground and running over his leg, from which injury his leg was amputated above the knee, and with great effort only was he saved from loss of his life.
It was in testimony by the plaintiff that the yard engine was defective, though this was denied by the testimony of the defense. A statute of the State of North Carolina is as follows: "Any servant or employee of any railroad company operating in this State, who shall suffer injury to his person in the course of his service or employment with said company by the negligence, carelessness or incompetency of any other servant, employee or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company, and any contract or agreement expressed or implied, made by *464 any employee of a railroad company to waive the benefit of said laws, shall be null and void under the said laws of the said State."
The Judge included in his charge the said statute of North Carolina in the words just quoted, and in his charge he stated that no such statute was in force as a statute of South Carolina, but that our law was different from the provision of the North Carolina statute.
In the first exception, the Circuit Judge is complained of in submitting to the jury whether the plaintiff and the brakeman, and engineer on this occasion, were fellow-servants. The charge when examined will be found full in its definition of the terms "fellow-servant" and "common undertaking," and these being matters of fact, were properly left to the jury. In the second exception the same question is raised, and the third exception, so far as the facts were concerned, was properly submitted to the jury, and the same thing exists in exception four. The Circuit Judges of the State are subjected to a very onerous responsibility in their charges to juries. The Constitution of the State inhibits them from charging upon facts — they cannot even state the testimony, and the Judge has, in the case at bar, very wisely contented himself with giving correct definitions of the terms "fellow-servant" and "common undertaking," and left it to the jury to say whether the relation of "fellow-servant" and "common undertaking" existed. The matters embraced in these exceptions are not where the difficulty in this case arises, as we shall see presently when we come to pass on others. These exceptions are overruled.
II. It is true, that plaintiff himself swore that his contract of employment with the defendant was entered into at Abbeville, S.C. but he stated that it was as flagman with a certain salary attached thereto that he was employed, and that subsequently he was transferred to Monroe. N.C., as night conductor in the Monroe yard at a greater salary. Now, whether this contract of employment at Abbeville was the same both as flagman and as night *465 yard conductor, were matters properly left to the jury, for the testimony was oral and the Circuit Judge would have had no right to have announced to the jury that the employment of the plaintiff by the defendant was the same in both instances. The Judge was exceedingly careful in his charge to the jury to discriminate betwixt the two employments, whether under the South Carolina law or that of North Carolina.
These questions have been before the Court quite recently in Fraser v. the Charleston and Western Carolina R.R., ante, 140, 146, where it was under discussion as to what law, that of Georgia or South Carolina, should apply. It was held as follows, quoting from the case of Scudder v. Union NationalBank,
"`Matters bearing upon the execution, the interpretation or validity of a contract. are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.' In Levy v. Boas, 2d Bailey, 219, approved inAyers v. Audubon, 2d Hill., 604, it is declared, `That the lexloci contractus is to be observed on the nature, validity and construction of the contract, but the form of the action, the course of the judicial proceeding and the time when the action must be commenced, must be directed exclusively to the laws of the State in which the action is brought.' This general rule is well settled and understood * * * The contract was alleged to have been made in Georgia concerning a shipment from that State into South Carolina. It was, therefore, not to be fully performed in South Carolina, but was to be at least partly performed in Georgia, where made. It, therefore, falls within the general rule stated in 4th Elliott on Railroads, section 1506: `That the law of the place where it is made and is to be performed either in whole or in part governs as to its nature, validity and interpretation.' To *466 treat the question as relating to the remedy or the evidence of the contract, is to assume that a contract has been made to be evidenced and enforced; whereas, the real question is whether any such contract exists."
Thus it will be seen that there being some doubt as to the place where the contract was made, it was important for the Circuit Judge to leave that matter open for the consideration of the jury as well as to make a ruling upon the law as it would be — in the first place, if made in North Carolina, or secondly, if made in South Carolina. These exceptions must be overruled.
III. The Circuit Judge could not have charged as indicated in the tenth exception, because if the jury found the facts introduced at the trial that the contract was governed by the laws of the State of North Carolina, he could not have charged as requested as to South Carolina. It seems to us that his charge in the alternative was correct — that is, he laid down the rule in case it was to be performed in the State of South Carolina, and also what should be the rule in case it was found in North Carolina. This exception is overruled.
IV. In disposing of the 11th exception, we find that it is bottomed on a misapprehension of the Judge's charge; for, as we have heretofore remarked, he was very careful to lay down the law applying to such findings of fact as might be made by the jury. This exception is overruled.
V. We will now dispose of exception twelve. We do not find, nor did the Circuit Judge find, that the jury failed or refused to regard the instructions on the law. His Honor's charge on contributory negligence and as to assumption of risks will be found in the charge itself to have been exceedingly carefully performed. There is no doubt that if the jury had failed or refused to obey the law, as laid down by the Circuit Judge, that this Court would not for a moment hesitate to correct such error, but they made no such mistake. This exception is, therefore, overruled.
VI. Lastly, we will consider the thirteenth exception. We do not think this exception is well taken. It does correctly *467 state the language used by the Circuit Judge in his order overruling the motion for a new trial, but therein he only gave the effect of the testimony upon his own mind, which he had a right to do in such order. This exception is overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
MR. JUSTICE WOODS concurs in result.