141 S.E. 90 | S.C. | 1928
Lead Opinion
January 3, 1928. The opinion of the Court was delivered by The plaintiff alleged, among other things, that on the morning of August 9, 1924, she became a paid passenger on one of defendant's passenger trains from Rock Hill to Ft. Mill, South Carolina; that the conductor and other agents of the defendant saw or should have seen that she was an old woman, very stout and feeble; that at Ft. Mill she left her seat to alight from the train; that while she was attempting to go down the steps of the coach, the train suddenly started without warning, she was thrown down, her hip bone was broken, and she was rendered a helpless invalid for life. She alleged that her injuries were caused by the negligence of the defendant in the following particulars:
"(a) In failing to furnish plaintiff, an old, feeble woman, assistance in alighting from its train. (b) In failing to furnish plaintiff, an old, feeble woman, adequate and safe means of descending from its train. (c) In failing to stop its train a sufficient period of time for the plaintiff to safely get off. (d) In starting its train. (e) In starting its train suddenly and without warning to plaintiff while she, an old woman, was in the act of descending therefrom."
The defendant admitted by its answer that the plaintiff received some injuries at the time and place mentioned in *520 the complaint, while alighting or just after she had alighted from the defendant's train, but alleged that such injuries were due solely to her own negligence. It also set up the plea of contributory negligence, and pleaded as a bar to the action a release alleged to have been executed by the plaintiff in consideration of $150 paid her by the defendant.
The plaintiff, replying, denied the execution of the release; alleged that the amount named therein was totally inadequate to compensate her for her injuries; and alleged further that the said release was null and void by reason of the fact that at the time it was alleged to have been procured, the day after she was injured, she was lying in the hospital suffering great agony and pain from her broken hip, or was under the influence of drugs and no match for the defendant's agents, and was not conscious of her rights and did not know the extent of her injuries, which was known to the defendant, and that her signature to the said alleged release was procured by fraud, unfair methods, and misrepresentation on the part of the defendant.
The case was tried in November, 1925, in Chester county. At the close of all the testimony, defendant made a motion for a directed verdict which was overruled by the presiding Judge; the jury found for the plaintiff in the sum of $2,500.
The defendant's exceptions are six in number. The first three impute error to the trial Judge in refusing to direct a verdict for the defendant upon the grounds stated in its motion: (1) That no other reasonable inference could be drawn from the testimony than that the plaintiff, for valuable consideration, executed a release in favor of the defendant, for the personal injuries alleged to have been received by her, and that there is no evidence of fraud or misrepresentation on the part of the defendant in the procuring of the said release; and (2) that there was no evidence tending to show negligence or a breach of duty on the part of the defendant, independently of the said release, as the proximate cause of the plaintiff's injuries. *521
As there must be a new trial we shall not go at length into the testimony adduced in the case. It is enough to say that an examination of the testimony reveals that the trial Judge properly submitted to the jury the question of the validity of the release as well as the question of the defendant's negligence as the proximate cause of the plaintiff's injuries. There was testimony tending to show that the day after the accident occurred, the plaintiff, an old negro woman, while in the hospital, and while under the influence of drugs or suffering from the shock of the severe pain that naturally resulted from her injuries, signed a release, in consideration of $150 paid her by the defendant, releasing and discharging the defendant from all liability, etc., that might arise from her said injuries. Under all the circumstances, it was a question for the jury to say whether she freely and voluntarily executed the release, or whether, not knowing or understanding what she was doing, she was induced to sign it by misrepresentation, fraud or coercion.
As to the second ground there was testimony tending to show that while the plaintiff was attempting to get down from the steps of the coach, there was a sudden jerk of the train which threw her to the ground resulting in painful injuries. The defendant, as a common carrier of passengers, owed to the plaintiff, as a passenger on its train, the highest degree of care; and whether or not it was guilty of negligence in the exercise of its duty in that respect was, under all the testimony, a question for the jury.
By its fifth exception the defendant imputes error to the trial Judge in charging the jury that one who sets up the defense of contributory negligence admits negligence on his part. While, as stated by the Court in Cooper v. Railway Co.,
The sixth exception presents a more serious question. In charging the jury on contributory negligence, the trial Judge told them that if they should reach the conclusion that the defendant company was negligent, they should then inquire as to whether the plaintiff herself was negligent, and added: "If so, was the plaintiff's negligence greater or more efficient or nearer or was a more efficient cause of the injury than the negligence of the defendant? If so, then the plaintiff could not recover * * * because the plaintiff would be guilty of contributory negligence."
It is true that the trial Judge in his charge gave a correct definition of contributory negligence, but later he charged the jury as indicated above. We think that, in spite of the correct definition at first given by the Court, this later charge on the question would lead the jury to conclude that, although the plaintiff might be guilty of negligence to some extent, combining and concurring with the negligence of the defendant as the proximate cause of the injury, still, if such negligence, upon comparison with the negligence of the defendant, did not exceed in quantity, or was not a greater or more efficient cause of the injury than the defendant's negligence, it would not amount to contributory negligence barring recovery on the part of the plaintiff.
A good definition of contributory negligence, cited with approval in a number of our cases, is found in 7 Eng. Am. Ency. of Law (2d Ed.) p. 371:
"Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of *523 another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred."
The meaning of the word "contributory," as stated inEasler v. Railway Co.,
It is a well established rule that "contributory negligence to any extent will always defeat a recovery." See Gunter v. Manufacturing Company,
From the foregoing it is clear that his Honor's charge was erroneous. Whatever may be said in favor of its wisdom and justice, the doctrine of comparative negligence does not prevail in this State. The defendant's sixth exception is sustained.
We do not deem it necessary to consider the fourth exception. The judgment of the Circuit Court is reversed and the case remanded for a new trial.
MR. CHIEF JUSTICE WATTS and MR. JUSTICE COTHRAN concur. MR. JUSTICE BLEASE did not participate.
Dissenting Opinion
While I concur in the opinion of Mr. Justice Stabler in this case, in overruling Exceptions 1, 2, 3, 4 and 5, and, also concur in the view expressed that the language used by his Honor, the Special Presiding Judge, in his charge to the jury, as recited and complained of by appellant under Exception 6, is an incorrect statement of the law, as recognized in this State, I do not agree with the view that the judgment should be reversed on account of this error. Under this exception (6) *524 the appellant imputes error to his Honor, the Special Presiding Judge, in charging the jury as follows:
"Then the question for you is this — I need not repeat myself, gentlemen, because it would have rather the result of mixing rather than clarifying things — now the question for you is, if you conclude as a matter of fact on this occasion the defendant company was negligent, you then inquire, was the plaintiff negligent? If so, was the plaintiff's negligence greater or more efficient or nearer and was a more efficient cause of the injury than the negligence of the defendant? If so, then a plaintiff could not recover, because, Mr. Foreman and gentlemen, the plaintiff would be guilty of contributory negligence."
As stated in the opinion of Mr. Justice Stabler, the doctrine of comparative negligence does not exist in this State (except, of course, in cases falling within Sections 4914, 4915, Volume 3 of the Code of South Carolina 1922, which has reference only to railroad employees) and if it was the intention of the trial Judge to submit such issue to the jury it was error. In the use of the language attributed to the trial Judge we think he inadvertently made reference to the rule of proximate cause, while charging the jury on contributory negligence, and that there was no intention of charging the law of comparative negligence. The real question for the consideration of this Court, according to our view, is not, whether the language attributed to his Honor, the Special Judge presiding, was erroneous (and we concede that it was erroneous), but the real question is, Should the judgment of the lower Court be reversed on account of this error?
This Court has held in numerous cases that unless an error in the charge was misleading to the jury and calculated to cause the jury to render a different verdict, that the error should be regarded as harmless; also, that where the trial Judge states a proposition clearly and correctly in *525 one part of his charge, the fact that he makes an erroneous statement in another part of his charge does not necessarily give ground for a reversal of the judgment, but the charge must be taken as a whole. Further, this Court has in many cases held that it was the duty of counsel to call the Judge's attention to an inadvertent statement of the law and issues; also, in many decisions this Court has refused to reverse the judgment of the lower Court when it was convinced that the verdict was amply supported by the facts in the case, and that any fair-minded jury would likely under such state of facts render a similar verdict, even though error appeared in the course of the charge to the jury.
As to the charge of his Honor, the Special Presiding Judge, on the question of contributory negligence being erroneous, we call attention to the fact that the record shows that in other parts of his charge the law on contributory negligence was charged correctly. In one portion of his Honor's charge we find the following:
"Now, we come to the next step in the case. This defendant alleges, among other things, as one of its defenses that this party contributed to her own injury as a proximate cause. Now let us see what that means; let us try to answer. There have been lots of definitions given, but I will read from the book. What is contributory negligence? Contributory negligence is the want of ordinary care on the part of the person injured by the negligence of another, combining and concurring with that negligence and contributing to the injury as a proximate cause thereof."
We think it conceded that this is a clear statement of the rule on contributory negligence. After this charge by his Honor, later on his Honor charged the jury as follows:
"Now, that definition, gentlemen, is right hard to understand. That is contributory negligence. It simply means this, Mr. Foreman: When a defendant comes into Court *526 and sets up the defense of contributory negligence, it necessarily follows that the defendant who sets up that plea admits negligence on its part, but it says by that plea that `While I was negligent, that you were negligent also, and that your negligence concurring and, I might use the common expression, mixing with mine, was the first and moving and prime cause of the injury, without which the injury would not have occurred.'"
I think the only objection that could be raised to this part of the charge quoted is with reference to the defendant admitting negligence. With that exception the charge is not only not objectionable, but admittedly correct. At the close of the charge counsel for the plaintiff called this to the attention of the Court and the correction was made and the jury instructed on the same, so that the jury had a clear and correct statement of the rule on contributory negligence. This part of the charge must be taken in connection with that portion complained of by the appellant under its sixth exception, and when the charge is considered as a whole it could hardly be said that the jury was misled or that the defendant was prejudiced.
We must also keep in mind the fact that it is the duty of counsel representing the litigants to the cause to call the Court's attention to a misstatement of the issues and to any inadvertent statement in the course of the charge. The record in this case discloses that his Honor, the special presiding Judge, not only manifested an attitude of perfect fairness to the parties litigant throughout his charge and the entire course of the trial of the case, but that he manifested a desire for the co-operation of counsel representing the parties to the cause and invited them to call to his attention any matter. In view of this attitude on the part of the Court, I think it was especially the duty of counsel to bring to his Honor's attention any inadvertent or misstatement of the issues or law. In response to this invitation and request *527 counsel for the plaintiff-respondent called to his Honor's attention an erroneous statement made with reference to what was said about the defendant admitting negligence under the plea of contributory negligence, and, at the request of counsel for the plaintiff-respondent, his Honor made the correction, and stated to the jury that the defendant did not admit negligence by setting up the defense of contributory negligence. The record does not disclose that counsel for the defendant-appellant at that time brought to the attention of the Court any matter. Later on, however, when the special presiding Judge again gave counsel an opportunity to bring to his attention any matter, counsel for defendant-appellant did call the Court's attention to certain questions, and his Honor readily complied with the suggestions and requests. But counsel for appellant did not, so far as the record discloses, in any form bring to the Court's attention the matter appellant is now complaining of under the sixth exception. Why was it not done? Evidently because it escaped counsel's attention, or that counsel regarded it as of such little importance that it was not thought worth while. Evidently, if counsel had regarded the matter as likely to affect the verdict, there would have been no hesitation in bringing the same to the attention of the Court, knowing that the special presiding Judge earnestly desired to be absolutely fair to the parties litigant. If the matter complained of under this exception was of so little concern as to escape the attention of counsel, or was regarded as of not sufficient importance to be brought to the attention of the Court, it cannot be claimed to have affected the verdict of the jury. If it escaped the attention of learned and experienced counsel, until after the trial of the case, the jury could hardly be expected to have taken notice of it, and we are satisfied that the defendant was not prejudiced.
Furthermore, the purpose of the Court is to do justice between the parties before it, and where justice has been *528 done by the verdict of the jury, the Court should not set the judgment aside and order a new trial. That justice was done by the verdict of the jury in the case at bar is evident from the testimony appearing in the case for appeal. The testimony on the part of the plaintiff tends to substantiate the allegations contained in plaintiff's complaint in every particular, which complaint will be reported; and the Court could not expect any other fair-minded jury to render a different verdict under this testimony. Therefore, the judgment should stand.
In support of this position I call attention to some of the decisions of this Court:
The recent case of Bennett v. Ott,
"This principle was again and again declared by the presiding Judge; the portion of the charge complained of was plainly an inadvertence, which could not reasonably have effaced from the minds of the jury the correct principle announced. Moreover, the issue of fact was so sharply drawn that we cannot think that such inadvertent statement of the burden of proof could have prejudicially affected the rights of the defendant."
In the opinion of Mr. Chief Justice Gary, in the case ofThornton v. Spartan Mills,
"When those portions of the charge quoted in these exceptions are considered in connection with the entire charge, there is no reasonable ground for supposing that the result *529 would have been different if his Honor, the presiding Judge, had not so charged."
Such is my position in the case at bar.
Mr. Justice Jones, afterwards Chief Justice, as the organ of the Court, in the case of Davis v. Railroad,
"It would greatly harass the practical administration of the law for the appellate Court in reviewing charges to the jury to become hypercritical or a stickler for the technical rules of philology in every phrase and clause, and reverse verdicts for some loose expressions or some silent misuse of a word, when the general import of the charge stated the law. Any portion of a charge to which exception is taken should be fairly construed with reference to the clear tenor and import of the whole, and as an effort to explain the law of the case to men of ordinary or average education and intelligence. The average juryman has little knowledge and less concern about fine distinctions, but generally has a desire and capacity for sufficient information to enable him to do substantial justice between the parties."
If we follow this reasoning, so clearly stated by Mr. Justice Jones, afterwards Chief Justice, the case at bar, as we view the appeal, cannot be reversed. This language of Mr. Justice Jones was quoted with approval by Mr. Justice Watts (now Chief Justice) in the case of Teddars v. RailwayCo.,
In the case of Edgefield Manufacturing Co. v. MarylandCasualty Co.,
"But this Court should not order a new trial where from an examination of the record it has no doubt the verdict of any fair jury would have been the same, even if no error had been committed. In such a case the errors should be regarded not prejudicial." *530
This salutary rule, so clearly stated by Mr. Justice Woods, was quoted and affirmed by this Court in the case of Dennis v. Columbia Elect. St. Ry. L. P. Co.,
After a careful study of the record in this case, I am convinced that justice has been done by the verdict of the jury, and that the Court should not grant a new trial. For this reason, and for the reasons above assigned, I most respectfully dissent from the view expressed by Mr. Justice Stabler in sustaining the sixth exception and reversing the judgment of the lower Court, and think that the judgment of this Court should be that it is the judgment of this Court that the exceptions are overruled and the judgment of the lower Court affirmed.
Let the complaint, answer, reply, charge, and exceptions be reported. *531