Richardson v. N.W.R. Co. of S.C. , 124 S.C. 314 ( 1923 )

May 8, 1923.

The opinion of the Court was delivered by The appellants' attorney relies upon four propositions for a new trial, which are as follows:

"(1) It was error to allow the amendment to the answer.

"(2) Testimony as to experiments was incompetent.

"(3) It was error to refuse a new trial when experiments were made before the jury, in the absence of the Judge.

"(4) The charge of the Court was erroneous in point of law, and was a charge on the facts."

The propositions numbered 1, 2, and 3 involve questions that were addressed to the discretion of his Honor, the presiding Judge, and are not the subject of appeal, unless there was an erroneous exercise of such discretion, which has not been made to appear.

The proposition numbered 4 must, however, be sustained. The rule when facts should be submitted to the jury is thus clearly stated in A. E. Enc. of Law, 465 et seq., and quoted with approval in Rinake v. VictorManufacturing Co., 55 S.C. 179; 32 S.E., 983. AndWood v. Manufacturing Co., 66 S.C. 482; 45 S.E., 81:

"The general rule is well known that questions of fact are to be submitted to the jury, and this includes not only cases when the facts are in dispute, but also when the question is as to inference to be drawn from such facts after they have been determined. It will readily be observed that few cases will arises in which there is no question as to the facts involved; the element of ordinary care must from its very character always require the decision of a jury, except where there is a violation of statutory duty or when the facts are undisputed, and but one inference can be reasonably drawn from them. And the same is equally true as to the determination of the question of proximate cause, so that the following rules may be stated as applicable to every case. The issues of negligence should go to a jury: (1) When the facts, which, if true, would constitute evidence of negligence, are controverted. (2) When such facts are not disputed, but there may be a fair difference of opinion as to whether the inference of negligence should be drawn. (3) When the facts are in dispute and the inferences to be drawn therefrom are doubtful."

See, also, Weaver v. Ry., 76 S.C. 49; 56 S.E., 657; 121 Am. St. Rep., 934.

Tested by these authorities, the exceptions upon which the fourth proposition is based must be sustained.

The respondent's attorneys gave notice that the defendant would seek to sustain the judgment in its favor, on the grounds therein mentioned. As the testimony was susceptible of more than one inference, it would have been erroneous to have granted a nonsuit or directed a verdict in favor of the defendant.

Reversed, and remanded for a new trial.

MESSRS. JUSTICES WATTS and FRASER concur.

MR. JUSTICE MARION concurs in result.

MR. JUSTICE COTHRAN: I concur upon the ground of error in the Judge's charge, which converted ordinary negligence into gross negligence, and permitted the defendant in a case under the crossing statute to defeat a recovery by the plaintiff upon proof of the plaintiff's ordinary negligence.