38 S.E. 169 | S.C. | 1901
March 19, 1901. The opinion of the Court was delivered by By reason of the death of the stenographer who took down the testimony in this case, the same could not be set out in the "Case," and, therefore, we know nothing of it except what may appear in the Judge's charge, which, with the exceptions, should be incorporated by the Reporter in his report of the case, as they will sufficiently show what points are presented for our consideration; and, therefore, we need not undertake to set out here in detail the allegations in the pleadings or the exceptions to the charge. It is sufficient to say that the object of the action was to recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of defendant in failing to provide a safe place for him to alight from the train, when it reached the point at which he desired to leave the train; and that the only defense set up in the answer was a denial of each and every allegation in the complaint.
It seems to us that the only question presented by this appeal is whether there was any error on the part of the Circuit Judge in instructing the jury that, under a general denial, and in the absence of any plea of contributory negligence, they could not consider whether the plaintiff's negligence was the sole cause of the injury of which he complains. In other words, the question is whether the defendant, under a general denial, may controvert the allegation that the plaintiff's injuries were caused by the defendant's negligence, by showing that they were, in fact, caused by the plaintiff's own negligence, or that of some third person, and, therefore, were not caused by the defendant's negligence. It seems to *544
us that both reason and authority require us to answer this question in the affirmative. If a person is charged with having caused an injury to another by reason of his negligence, surely it is both reasonable and logical for him to say, "I deny the charge, and support such denial by showing that the injury complained of was caused by the negligence of the party injured, or that of some other person, and, therefore, I am not the cause of the injury complained of." If a person is charged with taking the life of another, it is certainly competent for him to deny the charge, and sustain such denial by showing that the party took his own life, or that his death resulted from some other agency, for which the party charged was not responsible. Indeed, this seems to us to be the strongest form of denial, for if it is shown that the act or omission complained of was the result of some other agency than the act of the party charged, then it is shown that he, not only did not do the act, but that it was impossible that he could have done it. But without pursuing the argument further, we will proceed to show that the authorities sustain this view of it. In 1 Encycl. of Plead.
Prac., in note 2, page 824, cited by counsel for appellant, it is said, "under a general denial, the fact that the injury was caused by the negligence of others, may be shown;" and quite an array of cases from other States are cited to sustain this proposition. But we have a recent case in our State, which, in principle, sustains our view — Wilson v. Railway,
Now, in this case, it is quite certain that the defendant company not only did not, by its answer, either expressly or impliedly (by setting up the defense of contributory negligence), admit its own negligence, but on the contrary, expressly denied any negligence on its part; and, therefore, under the authority of the case of Wilson, above cited, had the right to offer evidence tending to show that the injuries complained of by plaintiff were due to his own negligence, and thus disprove the allegation that such injuries were due to the negligence of the defendant. If it should be said that Wilson's case does not apply, because in that case the question arose as to the competency of the evidence, while here it does not appear that any such question was raised, the answer is obvious. While it is true that, owing to the unfortunate death of the stenographer, his notes of the testimony, and what occurred while it was being developed, could not be obtained, and is not, therefore, set out in the "Case," yet there is enough in the charge of the Circuit Judge to warrant the inference that such testimony was offered and rejected. For some of the language used by the Circuit Judge in his charge would have been absolutely meaningless, unless such testimony had been offered, and this our great respect for the intelligence and fairness of the Circuit Judge would absolutely forbid us to assume. The following language was used by the Circuit Judge in his charge to the jury: "I charge you, furthermore, in this case it is not charged and is not pretended that the people who had charge of that train on that morning did anything, or omitted to do anything, that they ought to have done. The sole contest is whether the place they put Mr. Kennedy out on *548 was a safe place. I charge, you cannot consider whether ornot Mr. Kennedy acted with ordinary care, because when therailroad company put in their answer they did not advise himthat they were going to prove that this thing occurred by hisnegligence, and not by the negligence of the railroad company;therefore, they can offer no testimony to show that hewas negligent." It seems to us that the language of the Circuit Judge, which we have italicized, clearly implies that the defendant did offer testimony tending to show the negligence of the plaintiff. What else could the statement that the defendant company, for the reason given, "can offer no testimony to show that he (meaning the plaintiff) was negligent," mean? But even if it be assumed that no such testimony was offered by the defendant, still we think there was error on the part of the Circuit Judge, in refusing the defendant's fourth and fifth requests to charge, under the principles established by Wilson's case, supra. It is true, that the "Case" does not show that the Circuit Judge, in expressterms, refused to charge defendant's fifth request, but he certainly did not charge that request, for he said nothing about it; and as the whole tenor of his charge was in direct conflict with that request, it must be regarded as having been refused. If, as held in Wilson's case, it was competent for the defendant to offer testimony, under a general denial, tending to show that the plaintiff's injuries were caused by his own negligence, and in that way sustain its denial of the allegation that the negligence of the defendant caused plaintiff's injuries, then clearly, upon the same principle, it was not only the right but the duty of the jury to consider the question whether the negligence of the plaintiff caused his injury. If so, then unquestionably, there was error in instructing the jury that they could not consider any such question. Even if there was no testimony adduced by thedefendant, tending to show that plaintiff's injuries were caused by his own negligence, yet there may have been in the testimony adduced by the plaintiff facts and circumstances tending to show negligence on his part; and, as we have said *549 above, there must have been some such testimony in the case, for otherwise the manifest effort of the Circuit Judge to impress upon the jury the idea that, under the pleadings in this case, they could not consider such testimony, would have been worse than idle. It seems to us clear that this case has been tried by the jury under erroneous instructions as to the law applicable to it, and that the exceptions to the charge must be sustained.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.
MR. JUSTICE GARY dissents.