Parker v. South Carolina & Georgia R. R.

48 S.C. 364 | S.C. | 1897

The opinion of the Court was delivered b5^

Mr. Chief Justice'McIver.

This is an appeal from a judgment entered on a verdict, obtained by plaintiff against defendant, in an action to recover damages for injuries sustained by the plaintiff, occasioned, as is alleged, by the negligence of defendant, while plaintiff was in the employment of defendant as an engineer running one of the defendant’s locomotives. The exceptions, for the purposes of this appeal, other than the first, are based upon alleged errors of omission and commission in the charge of the Circuit Judge, and, therefore, for a full understanding of the questions presented, it will be necessary that the requests to charge, together with the charge in full, as set out in the “Case,” as well as the exceptions upon which the appeal is taken, should all be incorporated in the report of this case.

1 It seems that the disaster, which occasioned the injuries of which plaintiff complained, occurred on the line of the Carolina, Cumberland Gap and Chicago Railway Company, on the 25th of June, 1895, at which time, as plaintiff alleged in his complaint, the defendant company was operating the said Carolina, Cumberland Gap and Chicago Railway, under a lease or agreement executed by the receiver of said last mentioned railway company. This allegation it became necessary for the plaintiff to prove under the general denial in defendant’s answer; and as such alleged lease was not on record in any of the offices in which such a paper was required to be recorded, the plaintiff gave due notice of a motion, based upon affidavits, for an order requiring the defendant company to deliver to the plaintiff a copy of the agreement under which the defendant company was operating the Carolina, Cumberland Gap and Chicago Railway during the month of June, 1895. This motion was heard by his Honor, Judge Ernest Gary, who, on the 21st of February, 1896, granted the order to which error is imputed by the first exception, upon the ground that “upon the facts before his Honor at the time there was no foundation in law for said order.” It will be observed that there is no particular specification of error in the exception, and hence it might possibly be disregarded, as too general to require its consideration. But, waiving this, we learn from the argument that the specific error complained of is, that the object of the motion was to obtain a copy, or inspection, of a document which the plaintiff desired to use in making out his own case, and not of a document which defendant proposed to use in making out its defense; and that this Court has decided in two cases — Cartee v. Spence, 24 S. C.., at page 558, and in Jenkins v. Bennett, 40 S. C., at page 400 — that such is not the object of section 389 of the Code, under which this motion was made. An examination of those cases, however,- will show that no such point was decided in either of those cases. While it is true that in Cartee v. Spence, an intimation was thrown out to the effect claimed by counsel for appellant, yet the Court distinctly declined to decide the point, and rested its decision, expressly, upon another ground. So in Jenkins v. Bennett, the Court, in terms, declined to solve the doubt suggested in Cartee v. Spence, resting its decision upon another ground. Neither do we think it is necessary now to decide what is the proper construction of section 389 of the Code, for the reason that the order to which exception is taken, amounted, practically, to nothing. Copies or inspection of the papers desired, were not obtained under that order, and, therefore, appellant suffered no injury from it. The evidence that the defendant company was operating the Carolina, Cumberland Gap and Chicago Railway at the time of the accident seems to have been obtained 'another way — -apparently in the mode suggested in Cartee v. Spence — and, so far as appears, no exception is taken to such evidence. It is manifest, therefore, that even if the order in question was erroneously granted, it was a harmless error. The first exception must be overruled.

2 The second exception is based upon the unfounded assumption that Drs.-Hill and Tompkins were employed by the defendant company to attend the plaintiff, and that such company, and not the plaintiff, was liable to those doctors for their medical attention. There is nothing in the testimony to sustain such an assumption. Neither of the doctors in their testimony say that they were employed by the defendant company, or that they looked to it for payment of their bill. The fact that the defendant company, after the accident had occurred- — -how soon after does not appear — gave Messrs. Hill and Tompkins notice that an accident had occurred, in which plaintiff had been injured, is very far from showing that the company had employed these doctors to attend the plaintiff, or that it would be responsible for their bill. That notice was, manifestly, given in obedience to section 1690, in order to escape the penalty therein provided for. Indeed, the testimony shows that Messrs. Hill and Tompkins had already taken charge of the case and were rendering their medical services to the plaintiff, presumably with his consent, before the notice was given by defendant company to Messrs. Hill and Tompkins; and this would raise a liability on the part of plaintiff to pay for such services. The fact that the plaintiff had not paid the medical bill at the time of the trial amounts to nothing. If he was liable for it, as he unquestionably was, the Circuit Judge was clearly right in instructing the jury that, in estimating the damages sustained by the plaintiff, they might take into considerationth.e amount of the doctor’s bill. This exception must be overruled.

3 The third exception cannot be sustained. Inasmuch as the Circuit Judge had, in his general charge, instructed the jury that the rule was different in a case brought by a passenger from that in which the action is brought by an employee, and that in the latter case the plaintiff must make out a case of negligence by the preponderance of the evidence, it seems to us that the proposition of law upon which the second request is based had been already charged, and need not have been repeated, as demanded by this request. True, the same phraseology was not used, but nothing is better settled than that there is no error in declining to use the precise phraseology in which a request to charge is couched, provided the principle of law involved is correctly laid before the jury. The point of this exception seems to be, that there is error in not saying.to the jury that, in a case like this, there was no presumption of negligence, as there would be in a case brought by a passenger, but that- the burden of proof was upon the plaintiff ’ to show negligence on the part of the defendant company. In the first place, we see nothing in the case which called for any such specific instruction. It does not appear that the plaintiff claimed that there was any presumption of negligence. And if there had been, the Judge’s instruction ' to the jury held the plaintiff to the duty of showing, by the preponderance of the evidence, that the disaster was caused by. the negligence of the defendant; and this was only another way of saying that the burden of proof was on the plaintiff to show negligence on the part of defendant.

The fourth exception must likewise be overruled for the same reason. The Judge had already charged the jury as to the difference in the degree of care required in case of a passenger and in a case brought by an employee, and there was no error in omitting to repeat that instruction.

The fifth, sixth, and seventh exceptions cannot be sustained, for the reason that the propositions of law upon which the requests therein referred to are based were sufficiently covered by the charge of the Circuit Judge, and there was no error on his part in refusing to repeat those propositions in the language which appellant saw fit to present those requests.

4 It only remains to consider the eighth exception, which must also be overruled. The law in reference to the case of an employee who uses defective machinery or appliances after knowledge of súch defect was, it seems to us, fully and correctly stated by the Circuit Judge, and for this reason there was no error in refusing to charge defendant’s thirteenth request. In addition to this, such an instruction as was there requested would have been an invasion of the province of the jury; for, as was said in Leisure v. Graniteville Manufacturing Co., 18 S. C., at page 281: ‘fit does not follow necessarily that a servant is guilty of contributory negligence because he remains in the service of his master after he has knowledge of defects in the machinery or appliances with which he is furnished to perform his work, but it is a question of fact for the jury to determine under all the circumstances of each particular case;” citing Wood on Master and Servant, sec. 357; Snow v. Housatonic Railroad Company, 8 Allen, 441.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.