74 S.E. 825 | S.C. | 1912
March 25, 1912. The opinion of the Court was delivered by This action was brought to recover damages for the alleged wrongful killing of stock, the property of plaintiff. The allegation of the complaint was the plaintiff owned and was in possession of a horse which casually and without the fault of the plaintiff strayed on the track of the defendant, and that the defendant by its agents and servants, not regarding its duty in that respect, so carelessly ran and managed a locomotive that the same ran against the horse and killed it.
The defendant interposed a general denial, and a further plea that the injury to the horse was due to the sole negligence of the plaintiff, and in a separate defense pleaded contributory negligence. Upon the trial of the case a verdict was rendered for the plaintiff.
Defendant appeals, and by five exceptions questions the correctness of the Judge's charge, and refusal to charge requests as asked for by the defendant. Let the Judge's charge and defendant's request to charge together with the Judge's remarks thereon, and defendant's exceptions be set out in the report of the case.
As to the exceptions Nos. 1, 2, and 3 of defendant's request to charge, we think they were taken under a misapprehension, *110 for we find the following at the close of his Honor's charge: "Mr. Cohen: About the request to charge, your Honor. His Honor: They are all on the facts, but I have no objection to reading them. He then read them and after reading them said, `that is correct, as applied to the case in which it was affirmed by our Supreme Court; but it is a question of fact for you to decide in this case, whether by the stopping of the train they could have avoided the injury, or whether by the exercise of due care they could have avoided the injury to the horse." After reading over the 2d and 3d request he said, "That is correct."
After reading the 4th request he instructed the jury that all matters of fact were for them to settle by the principles of law laid down as they had been charged. By reference to his charge it will be seen that he had in his own language fully instructed the jury as to the law in the case, and subsequently charged the first and fourth requests of defendant, and explicitly charged the 2d and 3d requests of defendant.
As to the 5th request, he charged it as correct. It is true he said, "that is true as an abstract proposition," but he left the facts for the jury to decide.
An examination of the Judge's charge as a whole will show that he fully charged the jury as to the law applicable to the case and left the facts to them. It is the duty of the Court to declare the law of the case and he has a right to do so in his own language, and when he fully discharges this duty he is not compelled to charge any abstract questions of law, or even sound propositions of law, applicable to the case if he has already covered the ground. Even if the Judge erred in saying the requests presented were on the facts and not a proposition of law, it was not prejudicial, as he virtually charged them all, leaving the facts for the jury. We think there was no error on part of the Circuit Judge. *111
The exceptions are technical, wanting in merit, and defendant was in no manner prejudiced by remarks of Circuit Judge. Exceptions overruled.
Judgment affirmed.
