Nickles v. Seaboard Air Line Ry. , 74 S.C. 102 ( 1906 )

April 12, 1906. The opinion of the Court was delivered by This is an action brought in the Court of Common Pleas of Abbeville, by the plaintiff Nickles, as the administrator of the estate of Rhoda B. Black, deceased, for the uses and benefit of T.F. Black, the husband of the said Rhoda B. Black, in accordance with the statute of this State, for damages amounting to $50,000. The complaint sets forth all facts and circumstances of the death of Mrs. Black. The answer of the defendant denied its liability. The report should set forth the case, the complaint and the amended answer (omitting plaintiff's demurrer to a part of the answer, it having been overruled by the Circuit Judge and no appeal being taken therefrom). The case came on to be tried by his Honor, Judge Klugh, and a jury. The verdict for the plaintiff was for $8,000. After judgment thereon, the defendant appealed upon twenty-six grounds, which should be set forth in the report of this case.

The exceptions will be classed as follows: I. 1, 2; II. 3; III. 4; IV. 5, 6, 7, 8, 9, 26; V. 10; VI. 11; VII. 12; VIII. 13; IX: 21; X. 19, 20; XI. 16; XII. 17; XIII. 14, 15; XIV. 22, 23, 24, 25; XV. 18.

Before proceeding with the examination of these exceptions the history of the case in general terms may be stated as follows: Thomas F. Black was a telegraph operator stationed at Haverhill, Ohio. His wife, the intestate, Rhoda B. Black, resided with her husband, said T.F. Black at Haverhill, Ohio, having been married but a few months. The defendant railway was anxious to secure his testimony in its behalf in a lawsuit pending trial at Elberton, Ga. A communication was opened by the defendant with said T.F. Black by telegraph and an agreement was reached by said Black with said defendant railway by which the said Black agreed to give his testimony at Elberton, provided some one should take his place, temporarily, as telegraph operator; that he should be paid for his services as telegraph operator while attending Court; that a ticket should be furnished to himself and wife to Elberton, Ga., from Haverhill, O. That on the 9th day of September, 1904, Black and wife were proceeding on their trip to Elberton when on the night of the said 9th of September, while as passengers on the defendant railway, while crossing a trestle at a high rate of speed, about fifty miles an hour, while thirty-three miles an hour was the schedule speed, the entire train, consisting of the engine, tender, mail car, express car, the first and second passenger coaches and the Pullman car, were precipitated from the trestle, thirty feet high, to the ground. The trestle at the southern end gave way. The plaintiff claims that the trestle gave way because improperly constructed — the timber thereof being rotten and the bolts insecurely fastened, having no taps, etc. While the defendant claims that said trestle was constructed in a thorough manner and that the said train was thrown from the track on said trestle because of the placing of a bar of iron, by an unknown person, on said trestle, thus causing the engine to be forced from the track — the damage ensuing therefrom. The defendant denies that the timbers were rotten or that there was any error of construction of the Whisonant trestle. Both sides admit that Mrs. Rhoda Black was killed in the wreck, her neck being broken. A great deal of testimony was taken on each side as to the condition of the piling upon which the trestle was constructed. We will now consider the exceptions in groups.

I. These exceptions relate to an alleged error of the Circuit Judge in permitting the witness, T.F. Black, to state the injuries received by him in the wreck, on the ground that such testimony was irrelevant and immaterial to the issues involved herein as prejudicial to the defendant. We cannot see that this testimony was anything but descriptive of the wreck. Defendant's witnesses admitted that four persons were killed in the wreck. This witness was merely explaining the condition in which he groped about the car to find his wife's dead body, there being no lights, the same having been extinguished by the fall of the coach over the embankment.

We see no possible objection to this testimony, and so as to the second exception, which relates to the objection to Black's testimony, wherein he said a second train of cars ran into and upon the wreck of the train upon which the plaintiff's intestate was traveling. The witness having testified that his wife's neck was broken before this second train ran into them. The objected testimony had some relevancy by showing what effect this second train had upon the trestle in question. This exception is overruled.

II. This exception sets up an alleged error of the Circuit Judge in allowing the witness Black to testify that he would not have left Ohio unless the defendant railway should have extended its ticket to his wife, the intestate. Both sides admit that the intestate was granted transportation from Ohio to Elberton, Ga., over defendant's road. Both sides also admit that there was quite an animated colloquy, by telegraph, between these parties. The witness Black had refused to come as a witness unless certain conditions were complied with. He apprised the railroad of his unwillingness to leave his young wife alone in Ohio in case he came to Elberton, Ga., and it seems, therefore, that it was not at all illegal for the witness to state that he would not have come for the defendant unless his wife was furnished transportation by the defendant. This exception is, therefore, overruled.

III. This exception imputes error to the Circuit Judge in refusing to allow the defendant to ask Nickles, the plaintiff, on cross-examination, whether he had taken the oath of office as administrator, as required by law. The plaintiff had alleged in his complaint that he had been appointed administrator of the estate and the defendant in its answer had virtually denied the same. When it became necessary to establish the representative character of the plaintiff, without objection the plaintiff introduced the entire record of the probate court of York County from the petition for letters of administration through every step down to and including letters of administration granted by said probate court of York County, which record was certified to under the hand and seal of the probate judge of York County. Thus the record of such probate court was introduced without objection. Therefore, it is not in the power of the defendant, by its collateral attack upon such record, to nullify the same. The probate court, while a court of limited jurisdiction, is a court of record and not an inferior court as to matters clearly within its jurisdiction. Exparte White, 38 S.C. 41, 16 S.E., 286, where the foregoing is announced, and it is also held, that its grant of administration may be vacated only by direct proceeding.Hankinson v. Railway Co., 41 S.C. 1,19 S.E., 206, in which Chief Justice McIver held that section 2182 of the General Statutes of this State, providing that a certified copy of the letters of administration shall be sufficient evidence of appointment of such executor or administrator in any Court of this State, but that statute only supercedes a necessity of introducing the whole record of the court of probate. But in this instance the whole record had been introduced, and as long as that record stands unimpeached directly, it is improper to assail any portion in a collateral manner. This exception must be overruled.

IV. These exceptions are intended to bring in question the ruling of the Circuit Judge in excluding the opinions of witnesses Haverick and Davidson, as to what caused the wreck in which Mrs. Black was killed. These two witnesses whose opinions were sought had both testified as to all the facts which came within their knowledge, but neither one of them was an eye-witness to the occurrence. Neither one was present when the catastrophe occurred. So if their opinion as to the cause of the same could be given it could only be given as experts. It has been held in this State that an opinion may be given by a witness as to time, distance, velocity, form, size, age, strength, heat, cold, etc. Ward v. Charleston R.R. Co.,19 S.C. 521. So, also, as to injury to the sensibility of a woman who has had her affections trifled with. Jones v.Fuller, 19 S.C. 70. "The general rule is that a witness is not at liberty to express an opinion, but must confine himself to the statement of facts." Jones v. Fuller, supra. "The law does not look with favor upon the introduction of opinions in evidence. As a rule, witnesses are expected to testify to facts, and it is for the Court or jury to draw conclusions and form opinions upon the facts thus brought before them. Even when opinions are admitted, the ostensible purpose is to inform the jurors concerning some fact, and evidence which is sometimes received from necessity has been said to be less an opinion than a conclusion of fact." 12 A. E. Encyclopedia of Law, 2 ed., 421.

In discussing expert evidence, the same author, at page 422, says: "The general rule as to the admission of expert evidence is that persons having technical and peculiar knowledge on certain subjects are allowed to give their opinions when the question involved is such that the jurors are incompetent to draw their own conclusions from the facts without out the aid of such evidence." State v. Clark, 15 S.C. 403.

Mr. Greenleaf, in his work on Evidence, says, in vol. 1, sec. 440, says, "That in questions of science, skill or trade, or others of like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence. Thus the opinions of medical men are constantly admitted as to cause of death, of disease, or the consequence of wounds, and as to the same or insane state of a person's mind, as collected from a number of circumstances, and as to other objects of professional skill; and such opinion are admissible in evidence, though the witness founds them, not on his own personal observation, but on the case itself as proved by other witnesses."

Now, in the case at bar, the witnesses named were each asked to give his opinion as to the cause of the accident. There was testimony on the part of the plaintiff that there was a high rate of speed in running the train; that some of the piles of the trestle had rotted and gave way, thus precipitating the train to the earth, a distance of thirty feet. There was testimony of the defendant that the trestle was built of the best timber, and that there was some testimony that might lead to the conclusions that the roadbed had been tampered with which threw the engine off the track at the south end of the trestle.

Therefore, no matter what caused the injury, all these facts were fully testified to by witnesses. No reason existed why these experts should be called in to aid the jury. It became a question of hard common sense.

The question and the ruling of the Circuit Judge on the right of the witness Haverick to state his opinion as to the cause of the catastrophe was as follows: Mr. Glenn: "Will you state to the jury whether or not, in your opinion, from what you saw of this trestle and its timbers and iron rails, the whole structure and lie of the train, you saw there yourself, whether or not, in your opinion, this derailment or accident was caused by rotten timber or defective construction of this trestle?" Mr. Graydon: "I renew the objection I made this morning to that testimony." After argument, the Court ruled: "I have looked into the matter some during the recess. The extent of my examination of the question was simply to refer to Steven's Digest, and I found the rule there laid down that opinions of non-experts are now receivable in this country in all cases where, after a mere observation,a description without an opinion would convey an inadequate idea of what the witness testified to. The general rule is, then, that such opinions are competent in those cases where, after a personal observation, a description without an opinion would convey an imperfect idea. It seems to me the ruling this morning, in view of that general principle, is wrong. The witness may testify to a condition of things prevailing, and it seems to me that the description of what the witness saw from his personal observation sufficiently enables the jury to form the opinion without the necessity of the witness expressing an opinion himself. So that I will reverse the ruling made this morning." Mr. Graydon: "I move that the stenographer strike out from the testimony the opinion of Mr. Haverick." The Court: "Yes, sir; will have that stricken out, and will instruct the jury now, that while you will take every fact testified to as to the condition of things, when a witness says in his opinion a catastrophe was not caused so and so, that opinion is not evidence for you to consider. You take the facts as he describes them and determine for yourselves from those facts not only whether the accident or catastrophe could have been produced by the alleged cause, but whether as a matter of fact, it was produced by the alleged cause." These exceptions are, therefore, overruled.

V. When the witness D.H. Davis testified, it was as a witness for the defendant, and he stated that he had been injured in the wreck, but was not very much injured. On the cross-examination, he was asked if he had been settled with by the railroad for his injuries and his answer was that he had. After this testimony had been elicited the defendant objected. Upon the question of the relevancy of this testimony raised by the defendant the Court held that it was relevant to the issue and that it was on cross-examination of defendant's witness.

It seems relevant to us to a certain extent at least. It was a recognition by the railroad that persons injured by the wreck were entitled to compensation therefor. This exception must be overruled.

VI. This exception relates to an alleged error of the Circuit Judge in allowing the plaintiff's witness T.F. Black, over the objection of the defendant, to testify that Davis, who was the telegraph operator nearest to the scene of disaster, did not say anything to him concerning his allegation that he had already sent a message to the defendant company apprising them of this disaster. To a certain extent it might be said that the testimony of the witness Black was in contradiction of Davis' testimony, but be that as it may, if this was an error it was of no moment to the defendant. This exception is, therefore, overruled.

VII.-VIII. These exceptions relate to the alleged error of the Circuit Judge in his general charge to the jury, wherein he stated that the defendant railway cannot make a binding contract with a free or gratuitous passenger to relieve itself from more than ordinary negligence and cannot make such contract to relieve itself from injuries received by such passenger on account of gross negligence, it being submitted by the appellant that it can make a valid contract with such passenger which will relieve it of liability on account of all injuries resulting from negligence, or gross negligence, and all other acts except such as are wilful or wanton in their nature.

We do not think there was error in the Circuit Court as here complained of. The Constitution of this State, sec. 3, art. IX., provides: "All railroads, express, canal and other corporations engaged in transportation for hire * * * are common carriers * * *. It shall be unlawful for any such corporation to make any contract relieving it of its common law liability or limiting the same in reference to the carriage of passengers." Our Courts have so holden —Swindler v. Haillard and Brooks, 2 Rich., 286; Baker v.Brinson, 9 Rich., 202; Wallingford Russell v. Ry. Co.,26 S.C. 258; Johnson v. Ry. Co., 55 S.C. 152,32 S.E., 2. In the last named case the Court held: "A contract whereby a common carrier undertakes to secure immunity beforehand from liability from damages for injuries resulting from its negligence, or that of its servants or agents, is contrary to public policy and therefore void." The Supreme Court of the United States, in Ry. Co. v. Stevens,95 U.S. 655, held: A common carrier of passengers can not lawfully stipulate for exemption from liability for personal injuries caused by the negligence of its servants where the transportation of the plaintiff in its cars although not paid for by him in money, was not a matter of charity nor of gratuity. The syllabus of this case is as follows: "A, who was the owner of a patented car-coupling, for the adoption and use of which by railway company he was negotiating, went at the request and expense of the company to a point on its road to see one of its officers in relation to the matter. A free pass was furnished by the company to carry him in its cars. During the passage, the car in which he was riding was thrown from the track by reason of the defective condition of the rails and he was injured. Held (1), That the passage was given for a consideration and that he was a passenger for hire. (2), That, being such, his acceptance of the pass did not estop him from showing that he was not subject to the terms and conditions printed on the back of the pass, exempting the company from any liability in any injury he might receive by the negligence of the agent of the company or otherwise." In the case ofRy. Co. v. Lockwood, 17 Wallace, 357, the syllabus of the case is as follows: "(1) A common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law. (2) It is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. (3) These rules apply both to common carriers of goods and common carriers of passengers, and with a special force to the latter. (4) They apply to the case of a drover traveling on a stock train to look after his cattle and having a free pass for that purpose. (5) Query: Whether the same rules would apply to a strictly free pass? (6) Held arguendo: That a common carrier does not drop his character as such merely by entering into a contract for limiting his responsibility. (7) That carefulness and fidelity are essential duties of his employment which cannot be abdicated. (8) That these duties are essential to the public security in his servants as in himself. (9) That a failure to fulfil these duties is negligence, the distinction between ``gross' and ``ordinary' negligence being unnecessary."

These quotations from the law are intended to apply to the case at bar, to the free pass, as it is called, issued by the railway to Mrs. T.F. Black, the intestate here. The ticket was as follows:

(Face of paper):

"Seaboard Air Line Railway Exchange Ticket. Pass Mrs. T.F. Black from Elberton to Petersburg. Account Witness. Good for ONE TRIP only, until Oct. 30th, 1904, unless otherwise ordered, when countersigned by C.A. Carpenter. Sept. 6th, 1904. J.M. Barre, President and General Manager. No. A 17261."

"Countersignature C.A. Carpenter. Stop-over at Stations permitted."

(Black of paper):

"Conditions. This free ticket is not transferable, and, if presented by any other person than the individual named thereon, or if any alteration, addition or erasure is made upon it, it is forfeited, and the conductor will take it up and collect full fare.

"The person accepting this free ticket agrees that the Seaboard Air Line Railway shall not be liable, under any circumstances, whether of negligence of agents or otherwise, for any injury to the person, or for any loss or damage to the property of the passenger using the same.

"I accept the above conditions. Mrs. T.F. Black."

"This pass will not be honored unless signed in ink by the person for whom issued."

Upon comparison of the principles laid down in the cases we have just quoted with the views just presented by his Honor in his charge, we cannot hold that he has violated any rules of law as pointed out in this exception and the thirteenth ground of appeal is governed by the same rule as hereinbefore stated. The latest decision of the Supreme Court of the United States which in the least antagonizes the views of our own Supreme Court, is that of the NorthernPacific Ry. Co. v. Adams, 192 U.S. 440. In this case it was decided that a party riding on a free pass when nothing whatever of value is paid is not entitled to recover. It was there declared by the Court that this case was distinguished from the cases of Ry. Co. v. Lockwood, supra, andStevens v. Ry., supra, and was expressly confined to cases of ordinary negligence, and this last case was adopted by the Circuit Judge in his charge to the jury.

It is palpable to this Court that this was not a free pass, as is often the case, for in his evidence it is seen that money value or its equivalent was paid to the railroad therefor. It was a condition upon which the husband engaged in the service of its defendant railroad as a witness. It was similar to the Lockwood and Stephens cases, and was left wisely by the Circuit Judge to the jury. We must, therefore, overrule these exceptions.

IX. These exceptions relate to the charge of his Honor touching punitive damages. In 13th Cyc., 106, the author says: "The better doctrine seems to be that they (punitive damages) are usually given as a punishment to the offender, for the benefit of the community and a restraint to the transgressor." This is abundantly evident under the decisions of this Court in Samuels v. Ry. Co., 35 S.C. 493,14 S.E., 943; Spellman v. Richmond DanvilleRy. Co., 35 S.C. 488, 14 S.E., 947; Mack v. Ry. Co., 52 S.C. 344,29 S.E., 905; Duckett v. Pool, 34 S.C. 311,13 S.E., 541. The case for appeal also shows that there was testimony as to recklessness in that the schedule time for said railroad was 33 miles an hour and that in crossing the trestle in question the train was running at a speed of 50 miles an hour. If there was any error in this charge, his Honor's attention was not called thereto. Burns v.Goddard, 72 S.C. 361, where Mr. Justice Jones, speaking for the Court, says: "Whatever may be the view elsewhere our cases support the view that an instruction upon an issue as to which there is no evidence whatever or a mistake in stating issues, is not reversible error unless the attention of the Court is called to the matter. Vann v. Howle, 44 S.C. 546,22 S.E., 735; Crosswell v. the Association, 51 S.C. 469,29 S.E., 236; State v. Still, 68 S.C. 38;46 S.E., 524." This subject has been so often discussed by this Court and its views so explicitly stated that we need not linger hereon. These exceptions are overruled.

X. In construing the Judge's charge it must be construed as a whole. The Court told the jury that the injury of a passenger was prima facie evidence of negligence. See Zemp v. Ry., 9 Rich., 84; Steele v. Ry.,55 S.C. 389, 33 S.E., 509. The Circuit Judge instructed the jury that the railway company was not an insurer of the lives of its passengers but was only bound to exercise the highest degree of reasonable. care for the safety of its passengers. These exceptions are overruled.

XI. This exception relates to an alleged error in his Honor in refusing to charge the jury, at the request of the defendant, that plaintiff could contradict the terms of the agreement on the part of Mrs. Rhoda B. Black as indorsed on the ticket or pass on which she was riding. Notwithstanding she has signed the same, as has been previously held by us in this case in disposing of the third exception, the request to charge did not represent the law. It was in the power of the plaintiff to show that there was something of value to defendant, as was held in the case ofStevens v. Ry. Co., U.S., supra. This exception is overruled.

XII. The error attributed to the presiding Judge in this exception is his refusal to charge the eleventh request, which is as follows: "That if the jury find in this case that the pass upon which plaintiff's intestate was riding was issued pursuant to the telegrams offered in evidence by the plaintiff, and that such telegrams were sent and delivered in order named by T.F. Black, then such telegrams fail to show that the said pass was issued upon any pecuniary or other valuable consideration moving the defendant." This charge was refused by the Judge because it would have been a charge upon facts. We agree with the Circuit Judge. Therefore, this exception is overruled.

XIII. These four exceptions relate to error alleged in the Circuit Judge, when, on the second appearance of the jury, he addressed himself to them urging the propriety of their reaching a conclusion, if according to their conscientious convictions they could do so.

In order that we may understand what transpired in the second charge of the Judge to the jury, we reproduce the same as follows: On Friday morning, May 26, the jury was called out.

"The Court: Mr. Foreman, the jury have been considering this case now for some time, and it may have developed that there are matters of law upon which the jury are disagreed and about which the Court might aid you by giving you some further instructions.

"The Foreman: It is not.

"The Court: Then it may be that there are matters of fact about which the jury are disagreed, and upon which the Court might give you some aid by having such portions of the testimony read over to you as have a bearing upon those questions of fact.

"The Foreman: It is not that.

"The Court: Then I take it that each juror understands the law of the case, and also has a clear conception of the facts of the case, and it is a matter of difference of opinion amongst you, which difference you have not yet been able to reconcile. Now, gentlemen, this jury has been charged with this case, and have been engaged with the hearing of it, and the consideration of the case after the hearing was had, for five days practically. It has been a case of considerable length and a case of considerable moment. It involves important issues, and for that reason the Court, in the trial of the case, in the hearing of the case, restricted nobody as to time or as to any other means of arriving at a correct conclusion, and so it turns out that the case has consumed a great deal of your time, a great deal of the time of the Court, and not only has it consumed time but it has already entailed a very large expense of labor and money to these litigants, as well as to the public, because it costs the public money to run the Court. So I hope these facts will suggest to your minds the great importance of having this case ended.

"Now it has got to be ended by a jury sooner or later, and I suppose in Abbeville County no jury be assembled which would be more competent to deal with these issues and to agree upon a verdict than the jury which now has the case. That being true, it must come with a great deal of force to you, as it does to the Court and to these parties engaged in this litigation — it must come with a great deal of force that the case ought to be ended and disposed of, and that you are the proper parties to do that.

"Now, if this jury were agreed that the defendant ought to have a verdict, that the plaintiff was not entitled to anything, there could be no delay in your writing a verdict. So I take it that that is not the case. Very well. If some of the jury think that plaintiff ought to have a verdict and others think that the plaintiff ought not to have a verdict — of course, that is one possible ground of difference to be conceived, and, as a matter of course, the Court, under the statement already made by you, that you need no further instructions upon the law, and that you have a full conception of the facts from the testimony, could not give you any aid in arriving at an agreement. It may be that you all agree that the plaintiff ought to have a verdict, but that you cannot agree, or have not as yet agreed, as to what your verdict should be. Well, if that be the case, the Court has no power, no means at its command to aid you in settling that difficulty. But if that be the case, then your labors ought to come to an early conclusion, because I take it that an intelligent jury, seeking to arrive at a just conclusion, if you are all of the opinion that a verdict ought to be rendered on one side or the other, ought to be able to arrive at some common ground, and bring that in as your verdict.

"Now, whatever may be the ground upon which you differ, and the Court has neither the right nor the desire to know about those matters, still you understand the vast importance of having an agreement, so that the case may be finally disposed of. As I have already said, it has cost you a great deal of time and labor, because you sit here listening to a case, that requires the exertion of your intellectual faculties and energies, and as well, a strain upon physical powers; and then when you go to consider a verdict that, again, is a tax upon your energies, both of mind and body. So it has cost you a great deal of labor already, as well as a great deal of time, and probably has cost you a good deal in the fact that you are forced in rendering this service to your country, this patriotic service, in a greater or less degree to allow your private business affairs unattended to, neglected. Now, then, you ought to consider that as a very strong reason why you should get together and agree upon a verdict, and not only that, but other sources of expense that the Court has already indicated, the expense to the public, the expense to each of these litigants. I am quite sure these facts appeal to you as reasons why you ought to bend all your energies and direct all your efforts to the sole object of arriving at a verdict.

"Now, no juror is required in a civil case to sacrifice his conscientious convictions. You are all sworn to well and truly try and a verdict render, and no one of you is forced, or ought to feel constrained, to violate that oath. Each of you ought to well and truly try the case and make up your mind as to what ought to be the verdict in the case. Then, as a matter of course, each of you ought to compare his own conclusion which he has arrived at, with the opinions Then, as a matter of course, each of you ought to compare his own conclusion which he has arrived at, with the opinions of his fellow-jurors, and seek to arrive at some common ground of agreement that will be your verdict. If any juror disagrees with his fellow-jurors and it is a matter of conscience with him, so that he would feel he has violated the oath he has taken if he yielded the position he holds, of course he ought not to yield that position. But if it is not a matter of conscience, but merely a matter of difference of opinion, then it is your duty to harmonize your opinions. Probably there never has been tried a case by twelve intelligent men, in which there was an absolute identity of opinion amongst all twelve of the jurors about the case, and the very fact that intelligent minds do differ makes it inevitable that every verdict should be not, probably, a direct expression of any man's opinion, but an expression of your harmonized opinions. You put your opinions together and compare them. Wherever they agree, why there is no necessity for any harmonizing. Wherever they differ, then the difference ought to be considered, and unless differences go to the conscientious convictions of the respective jurors, then those differences ought to be reconciled. In one sense, every verdict is a compromise, and I don't mean that in the sense in which the word is generally used, and yet it is a harmonizing of the conflict between the opinions of the jurors, the conflicting view of the jurors; and that is what a jury who find some difficulty in agreeing in a case ought to feel it encumbent upon themselves to do, compare their differences and reconcile them, if possible.

"As I have said, you have been engaged for quite a long time in considering this case, and I feel sure that no juror amongst you will be willing to surrender the case without arriving at a verdict, so long as there is a probability of your being able to agree. I don't say possibility of an agreement, because all things are possible, all things of a human character, and I don't propose to keep you confined in the consideration of this case until the last possibility of an agreement is exhausted, because it would be possible for the Court to keep you there for quite a while. But I conceive it to be my duty, and I cannot conceive that any of you would differ with me in that, and I believe, therefore, you consider it to be your duty, still to try to arrive at a verdict in this case. It is my duty to give you all the time necessary to enable you to arrive at the verdict or to demonstrate the impossibility or the extreme improbability of your ever agreeing upon a verdict, and for that reason the Court will give you further time to consider the case; either now or in your further consideration of it, the Court will, of course, be glad at all times to aid you in any way possible. Your comfort will be looked after so far as it is in the power of the Court to do so, and I hope up to this time your comfort has been administered to so that you have not suffered any serious discomfort other than the fact that you are still kept in the consideration of the case; and a case requiring as much time to try as this one did, involving the issues which it does, and comprising the vast amount of evidence that was offered in the case, necessarily requires longer for a jury, if it cannot at once arrive at a conclusion, to canvass all the phases of the case, all the facts, the evidence in the case, before it finally gives it up as something that is beyond its power to arrive at an agreement on.

"Well, now, I think you gentlemen understand the importance of your arriving at an agreement; the importance to yourselves as jurors — I don't mean to yourselves individually, to your individual interest, but to yourselves as a jury — and the importance to all the interests involved in the case, which are committed to you now to be determined and adjusted by your verdict. So you may retire, gentlemen, and proceed with the consideration of the case, and when you have arrived at a verdict, if you should, or if in the further consideration of the case, you find that you desire any aid that the Court can give you, you will let it be known, and it will be offered to you to the fullest extent within the power of the Court. You may retire."

An examination of this charge will show that there was no request by the jury for its discharge; such being the case the law did not require the Circuit Judge to discharge the jury, especially as he had brought them into Court of his own motion. It is important that the trial of causes should be ended. A Circuit Judge is but discharging his duty to the public, and especially to the litigants, when he urges the jury to reach a verdict, provided nothing like coercion takes place. We, therefore, overrule these exceptions.

XIV. This exception relates to the refusal of the Circuit Judge to charge the 12th request of the defendant, which is as follows: "If railway companies exercise their functions in the same way with prudent railway companies generally, and furnish their road and run their trains in the customary manner which is generally found and believed to be safe and prudent, they do all that is incumbent upon them, and if the jury in this case find that the defendant constructed, maintained and inspected its trestle in the manner generally found and believed by prudent railways to be safe and that it was operating its trains in the customary manner which is generally found and believed by prudent railway companies to be safe, then the jury must find for the defendant."

The Circuit Judge is here requested to lay down a proposition of law which we do not regard as sound. In Bodie v. Ry. Co., 61 S.C. 468, 488, 39 S.E., 715, it is said: "The charge made the usual customary way of doing things a conclusive test whether due care is exercised therein; whereas, that is merely evidence which should go to the jury along with the other evidence, leaving the jury to determine from all the evidence whether due care was observed. The usual customary way may not be a negligent way, but in this the Court left the jury no discretion but to find that plaintiff was not negligent, if he was doing the work in The usual customary way. In the case of Bridges v. Ry.Co., 25 S.C. 24, the Circuit Court declined to charge that: ``The degree of care required of defendant is only such as is exercised by well regulated railroads over their turn-tables, and if defendant exercise such care in this case, there was no negligence,' saying that other railroads' negligence could not excuse negligence by this defendant, and that it was for the jury to say whether there was negligence here." Our Supreme Court held, that there was no error in this.

In Lorimore v. Palmer Mfg. Co., 60 S.C. 168, 38 S.E., 436, where a similar request was refused by the Circuit Court, this Court, through Chief Justice McIver, as its organ, overruled the exceptions to the refusal to charge. This exception is overruled.

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

MR. JUSTICE JONES concurs with the limitations expressedin the opinion of MR. JUSTICE WOODS.