20 S.C. 258 | S.C. | 1883
The opinion of the court was delivered by
The respondent seeks to recover in this action, the value of two horses, killed on the track of defendant’s railroad, by a train of cars passing over them. Unlike the case of Jones against this defendant, just ■decided by this court, [see next case ante,] the respondent assumed the duty of proving negligence affirmatively by other testimony than the mere killing, and he did not rely upon the presumption arising from the fact of killing as in Danner’s Case. The defendant also introduced evidence upon the subject of negligence, and the case was stoutly fought, ón both sides, as to that question. The defendant submitted various legal propositions,
The first four, as is admitted, involved the same principle and hinge upon the same point, and they were discussed before us, on both sides, under the same head. They rest upon the general proposition, that a horse found upon a railroad track in this State is a trespasser, and that all questions as to the liability of a railroad company in the killing of such horse, must be adjudicated under the light of the fact that he is a trespasser. No doubt the counsel presenting these requests intended them to apply to Newberry county, the place of trial, as legal propositions arising under the operation of the stock law, and to such other counties in which the stock law had become the law. They intended to claim that in such counties, since the enactment of the stock law, stock were not at liberty to roam at large as formerly, and if in such cases they were found outside the premises of their owner, it was illegal, and a trespass, and that in such cases the law, as to injuries done them, should be applied under the influence of that fact.
The propositions, however, as presented to the judge, were general in their terms, no reference being made to Newberry county or to the stock law. The judge made a written indorsement on these requests, as follows : “ They relate to the general law of the State, and not to the fence law of this (Newberry) county. As a general rule of law in this State, said propositions are contrary to the decisions of this State.” It does not appear that any effort was made to correct this misunderstanding of the judge, or to inform him that the requests were founded upon the stock laws of force in Newberry county. On the contrary, the charge as thus indorsed seems to have been submitted to. This court has no power to consider propositions not made below, or to review refusals to charge in the absence of requests to charge. Errors of commission are of course before us, when brought up by proper exceptions, but errors of omission must be founded upon a previous request to the judge, in addition to the exceptions necessary to bring them under our review.
Looking at the requests as understood by the judge, based
' It is conceded in this case that the railroad company did not own the land upon which its track rested at the point where the damage was done, but was only entitled to a right of way, an easement, over the said land. The act above cited, further provides that “ wherever any of the said stock be found upon the lands of another person than the owner, the owner of such stock shall be liable for all damages sustained.” It will be observed that the prohibition is against permitting stock to run at large beyond the limits of the owners of land, and the penalty is a liability for damages, if one’s stock is found upon the lands of another. In this case the animals of the plaintiff were not beyond the limits of his land. They were not upon the lands of the defendant. The defendant had only an easement, an incorporeal hereditament, which is something different from land. The plaintiff still retained the ownership of the land, and might lawfully use it in any way not inconsistent with the easement of the defendant.
There was, therefore, nothing unlawful in the act of the plaintiff in permitting his stock to roam at large in his inclosed pasture upon his own land, through which the defendant only had the right of way, and it was not a trespass on his part for his animals to stray upon the track of the defendant’s railroad.
Fifth exception. “ Because his Honor refused the request, that a. railroad company is not liable for killing or injuring a horse upon the track of its train unless such killing or injuring is the result of gross negligence on the part of the employes running the train, or at least on the part of the engineer.” The judge allowed this except the word “ gross.” We think the weight of the authorities sustains the judge’s ruling. The subject of negligence has been much discussed, and various definitions have been given of it, and much confusion has arisen in reference thereto. Sometimes it has been held to be a question of fact and left almost entirely to the good sense of the jury. At other times it has been regarded as a question of law, and sometimes it has become a mixed question of law and fact. It is not necessary for us in this case to go into this question and explore the mass of cases in the different States and courts where this subject has been considered and adjudged. The exception itself submits it as a question of fact, and the only objection is that the Circuit judge did not require as a legal proposition that the jury should be limited to such negligence as might be termed gross.
Negligence, as we understand it, is the absence of care, and in its essence, in all of its forms, it implies wrong and fault in the party committing it. There may be different degrees of care. There may be a most assiduous, minute and scrupulous attention governing one’s conduct, or there may be that sort of attention which characterizes the conduct of ordinary men, or, still further, that which belongs to the reckless and indifferent. And there may be the absence of all care, substituted by a wanton, willful act, intended to do injury. The absence of these degrees of care may characterize the negligence which results. In the
It should be observed here, however, that negligence is a relative term, and its existence in a given case depends upon the requirements of the occasion. I mean to say, that an act may be negligent under one state of facts when the same act under a different state of facts might be. entirely free from negligence. For instance, to drive a wild and dangerous horse, and of unusual speed, along a crowded street with hundreds of persons and vehicles on the way, would be a negligent act, for the injurious consequences of which, if any, a party could, no doubt, be held responsible; but to 'drive the same horse at the same speed along an unoccupied street, or along some secluded road in one’s own enclosure, seldom or never traveled by others, might be free from every feature of negligence. So, too, in those counties in the State where the stock law has not become the law, and where cattle are at liberty to roam at large upon railroad tracks and elsewhere at will, for a train of cars to dash forward, without the precaution which should be observed in such cases, might be negligent, whereas the same train, going at the same speed, and without the same precaution, in the counties where the stock law has been adopted, and where the railroad employes had no thought that cattle would be found on the track, would not be a negligent act.
So, at last, the kind of negligence for which a party may be madé responsible depends on the degree of care which may be required in the special case. If the care of the most prudent and scrupulous is required, then slight negligence may be actionable. If ordinary care is only required, then the absence of this or
It is true, it has been held in words in some of the States where the rule of the common law as to cattle prevailed, to wit, where the owner was bound to keep them on his own land, that railroad companies could only be made answerable for an injury to them wantonly perpetrated, or, as is said in some of the cases, where the act causing the injury was reckless and willful. This seems to have been held in Massachusetts, New York, Ehode Island, and in some other of the States. But in "Vermont, and in some other States, the doctrine prevails that the company is liable for injuries to cattle upon its track if they could have been avoided by its servants in the exercise of ordinary care. Pierce Railr. L., p. 322-326, where the different cases are collected.
These principles, although seemingly in direct conflict, may yet be somewhat harmonized by remembering, as urged above, that negligence is relative, and its character depends upon the care' required in a given case; and, therefore, what would be negligence, gross or otherwise, in one case, might have no feature of negligence in another. In the running of a railroad train, the employes must look to the safety of the passengers and of the property of the company, as well as to dangers to cattle and persons on the track, and the question of negligence must be determined by these considerations and others; but after letting these have their legitimate influence subordinating the danger of cattle to these higher interests, we cannot agree to the doctrine, that only gross negligence, to wit, the absence of that care which the reckless and indifferent would give, could alone make the road responsible. "We do not see that the fact that stock are required to be fenced in, and are not expected to be found on
Of course, we do not undertake here to determine what would be slight, ordinary or gross negligence in these railroad cases. All that we determine is, that-it is not necessary to show gross negligence, and that liability may attach below this. We think the law requires these companies, even in counties where the stock law prevails, to exercise at least reasonable care, such as ordinarily prudent men would be .expected to exercise under the circumstances. Whether this has been exercised in a special case is a question of fact for the jury.
The next two exceptions, the sixth and seventh, in which the judge was requested to charge that nothing short of wanton negligence or willful misconduct could make the defendant responsible, are disposed of by what we have already said.
We do not see that the eighth exception involves any principle of law. If it was a fact that the horse was first discovered or was first discoverable at so short a distance on the track that the train could mot have stopped in time, then this might have been urged upon the jury as proof that there was no negligence; but we do not see that the judge was required to charge that there was no negligence as matter of law.
The ninth exception alleges error because his Honor refused to charge as requested: “ That a counter-claim for damages resulting from the trespassing of the horses set up in the defendant’s answer in an action for damages for the killing or injury of horses by the train of a railway company is proper, and must be allowed to the extent of the damages proved to have actually resulted to the railroad from such trespassing, if it appear that such damage to the company was not the result of blamable conduct on the part of the company or the employes running the train.” Under the code (section 171) a counter-claim may be interposed: 1. Where the cause of action of defendant, which he attempts to set up by counter-claim, arises out of the contract
The plaintiff's action here did not originate in contract, so we need not consider any of the grounds above, except that portion of the first which provides for a counter-claim where the defendant’s cause of action arises out of the transaction set forth in the complaint, or is connected with the subject of the action. Did the defendant’s cause of action, presented in his counter-claim, .arise out of the transaction set forth in the complaint, or was it connected with the subject of plaintiff's action ? The foundation of the counter-claim is an alleged trespass by plaintiff's horses, which resulted in injury to defendants engine.. The transaction, if it be a transaction, which is the foundation of plaintiff’s action, is an injury done to plaintiff's horses by a train of cars of defendant. These two events were nearly contemporaneous in this instance; but did the first arise out of the latter ?
There is certainly no necessary connection between two such events. The one may happen, and frequently does happen, without the other; but even when happening at or near the same time, we do not see how the trespass of the horses, even if it be admitted that they were trespassing, (which must always be in such cases the first event,) can grow out of the injury done to the horses. Let it be assumed that it was a trespass for the horses to be on plaintiff's track, and this gave the defendant a right of action. The horses were upon the track before the train arrived, and a right of action had accrued to defendant before any cause of action arose to plaintiff.
It may be said, however, that the injury for which defendant seeks by his counter-claim to recover damages occurred afterwards. This is true, but did it grow out of the killing of the horses, which is the transaction constituting plaintiff's cause of action, or did it grow out of the fact that these horses were upon the track and threw the engine off? We do not see that defendant’s cause of action grew out of the transaction which is the foundation of plaintiff's suit, in the sense of the counter-claim provided
In most of the States having the code, similar provisions to-ours in reference to counter-claims have been, adopted, and in some of the States, the terms “ transaction,” “ arising out of,’* “ subject of action ” and “ connected therewith,” have been much discussed. The decisions are not uniform, and from them it is-difficult to arrive at a definite and satisfactory conclusion. In-some of the States, especially in New York, the tendency has been to limit and narrow the meaning of these terms. In others,, the construction has been more liberal. In the first, the principles of. the former doctrine of set-off and recoupment, which applied to actions ex contractu entirely, have controlled, more or less; in the latter, it has been held that the terms “ transaction *’ and “subject of the action” mean something more than contracts, and that consequently counter-claims may embrace other causes of action besides those arising in contract.
This whole subject is fully discussed with great ability and perspicuity in Mr. Pomeroy’s second edition of his Eemedies and Eemedial Eights, § 734, et seq., p. 772. And at section 790, will be found a discussion (of the “cases in which the
Tenth exception. Because his Honor refused the request of defendant to give a binding charge to the jury “to find for the defendant, because of there being in this case no proof, or, at most, a mere scintilla of evidence of negligence on the part of the defendant or its employes.” The judge declined this because there was contradictory testimony on that point which must be left to the jury. We see no error here.
Eleventh exception, as to contributory negligence, was refused in the form presented, because, as stated by his Honor, “A charge should not merely state a general rule of law. It should be made in connection with a point in the case on which evidence has been offered. And the above rule, as applicable to horses, has already been charged upon and the defendant held liable for negligence, if proved.” A judge is not bound to charge general and abstract propositions of law, however sound. They must
It is the judgment of this court that the judgment of the Circuit Court be affirmed.