37 S.C. 335 | S.C. | 1892
The opinion of the court was delivered by
TJpon the complaint being read, the defendant interposed an oral demurrer, that the allegations therein were not sufficient to constitute a cause of action, which being overruled, the defendant appealed. This court held (34 S. C., 62), that the Circuit Court had erred. IJpon the cause being again called in the Circuit Court, the plaintiff, on due notice, moved for leave to amend his complaint, and, at the same time, the defendant moved to dismiss the complaint, and for leave to enter judgment for the costs and disbursements. Judge Kershaw filed his order on the 27th February, 1891, as follows: “It appearing to the satisfaction of the court, that it would be in furtherance of justice to permit the amendment sought by the plaintiff, it is ordered, that the plaintiff have leave to amend his complaint in such particulars as he may be advised by counsel. It is further ordered, that the complaint, as amended, be served upon the defendant within twenty days after the filing of this order, and that the defendant have twenty days thereafter within which to answer the same. It is further ordered, that, on failure of the plaintiff to serve his said amended complaint within the time provided, that- the complaint be dismissed, and that the defendant have leave to enter judgment for its-costs and disbursements heretofore accrued and incurred.” From this order, the defendant gave notice of intention to appeal, but by written consent of the attorneys of record, the presentation of the questions underlying this appeal was postponed until the appeal from the final judgment should be heard.
2. After the defendant had answered the amended complaint, the cause came on for trial before Judge Fraser and a jury at the September term, 1891, of the Court of Common Pleas for Fairfield County. A verdict for the plaintiff having been rendered, judgment was duly entered thereupon, and the defendant now appeals to this court: I. Because the Circuit Judge erred iu refusing defendant’s motion for a non-suit. II. Because the presiding judge erred in charging the jury, with reference to the care required of the railroad company in the construction of its road, the following: “And it is not only the care that the railroad should be constructed to make a safe road for themselves, but it must be with that degree of care that a man ought to exercise towards the rights of another. Every man has the right to use his own as he pleases, but he must use it with that degree of care that a man ought to exercise that he does no injury to his neighbor.” III. Because the presiding judge erred in charging the jury as follows: “I have no right to tell you what constitutes care or the want of
This court has fixed another rule to be applied when error is alleged as to a charge of a Circuit Judge. “The correctness of a charge will be considered with reference to the case made, and not as an abstract proposition of law.” Brownlee v. Martin, 21 S. C., 400. Row, what was the case made here to which the
It is the judgment of this court, that the judgment of the Circuit Court appealed from be affirmed.