Joyner v. Atlantic Coast Line R. R. , 91 S.C. 104 ( 1912 )

The opinion of the Court was delivered by

Mr. Justice Watts.

This action was -brought to recover damages for the alleged wrongful killing' of stock, the property -of plaintiff. The allegation of the complaint was the plaintiff owned and was- in possession) of a horse which casually and without the fault of the plaintiff strayed on the track of the defendant, and that the defendant by its agents and servants, not regarding its duty in that respect, so carelessly ran and managed a locomotive that the same ran against the horse and killed it.

.The defendant interposed a general denial, and a further plea that the injury to the horse was due to- the -sole negligence of the plaintiff, and in- a separate defense pleaded contributory negligence. Upon the trial of the case a verdict was rendered for the plaintiff.

Defendant appeals, and by five exceptions questions the correctness- of the Judge’s charge, and refusal to charge requests as asked for by the defendant. Det the Judge’s charge and defendant’s request to charge together with rh-e Judge's remarks thereon, and defendant’s exceptions be set out in' the report -of the case.

‘ As to the exceptions- Nos. 1, 2, and 3 of defendant’s request to charge, w-e think they were taken under a misap prehension, for we find the following at the close of his Honor’s charge: “Mr. Coheni: About the request to' charge, your Honor. His Honor: They are all on the facts, 'but I have no objection to reading- them. He then read them and after reading them said, ‘that is correct, as. applied to' the case ini which it was affirmed by our 'Supreme Court; but it is a question of fact for you to decide ini this' case, whether by the stopping of 'the train they could have avoided the injury, or whether by the exercise of due care they could have avoided the injury tO' the horse.” After reading over the 2d and 3d request he said, “That is correct.”

After reading the 4tb request he instructed' the jury that all matters of fact were for 'them1 to settle by the principles of law laid' down as they 'had been charged. By reference to bis charge it w-ill be seen that be had in bis own language fully instructed1 the jury as to the law in' the case, and subsequently charged the first and fourth requests1 of defendant, anld explicitly charged' the 2d and 3d requests of defendant.

As to the 5th request, he charged! it as correct. It is true he said, “that is true as an abstract proposition,” but he left the facts, for the jury to- decide.

An examination of the Judge’s charge as a whole will show that he fully charged the jury as to1 the law applicable to the case 'and left the facts to them. It is the duty of the Court to declare the law of the case and be has a right to do so in bis own language, and when he fully discharges this duty be is.not compelled' to charge any abstract questions of law, or even sound propicteitioins of law, applicable to the case if he has already covered tíre ground. Even if the Judge erred1 in saying the requests presented were on the facts, and not a proposition of law, it was not prejudicial, a.s he virtually charged them all, leaving the facts' for the jury. We think there was no error on part of the Circuit Judge.

T'he exceptions are technical, wanting in merit, and defendant was in no manner prejudiced by remarks of Circuit Judge. Exception® overruled.

Judgment affirmed.