Slater v. South Carolina Railway Co. , 29 S.C. 96 ( 1888 )

The opinion of the court was delivered by

Mr. Chiee Justice Simpson.

In the case below, the plaintiff sought to recover damages from the defendant, a railway corporation, for alleged injuries to certain horses and mules shipped by plaintiff at Augusta, Ga., and consigned to plaintiff at Orange-burg, of this State. The main defence set up was, that the injury complained of resulted from the direct act of God, to wit, the recent earthquake “on the night of thirty-first of August, 1886, which was unforeseen, unprecedented, and providential, setting loose the waters confined in the pond at Langley Mill, adjacent to the track of said defendant, near Horse Creek, a locality on the road, and said waters, being irresistible in their violence, swept away and destroyed the said horses and mules which were not delivered and injured the rest in some degree, the defendant having exercised due care and diligence both in the transportation of said horses and in an effort to save them.”

At the close of plaintiff’s testimony, from which it appeared, through the cross examination by defendant’s attorney, that in all probability the injury resulted from the earthquake, the presiding judge, on motion of defendant, granted a non-suit, on the ground that he was. satisfied that the earthquake — an act of God— caused the injury, and that there was no sufficient evidence of negligence on the part of the defendant to carry the case to the jury. The appeal questions this ruling of his honor.

A common carrier, at common law, is an insurer against all injuries to the property in transit, except such as may be caused by an act of God, or of the public enemies, or by some excepted cause in a special contract, other than negligence, and the defendant not having contributed thereto by his negligence; and the onus is upon the defendant to show the cause claimed as a defence. The recent case of our own court of Wallingford Russell v. Columbia & Greenville R. R. Co. (26 S. C., 268), is sufficient authority here.

The law in reference to non-suits has been stated in several recent cases. In brief terms, it is as follows: a non-suit should be granted where there is a total absence of testimony to all or to any one of the material averments in plaintiff’s complaint. Not simply where, in the opinion of the judge, the testimony as to its force and weight is insufficient to make out the plaintiff’s case in every particular, but where there is no relevant or pertinent evidence to one or more of the said averments — no evidence that the jury could consider and weigh if the case went to them. This is the general rule, but in addition to this, where the defence, if true, would be sufficient to defeat the plaintiff, and that defence is admitted or not controverted by the plaintiff, then the case is in substance one of a total failure of evidence, and a non-suit would be proper. Pool v. Railroad Company, 23 S. C., 289.

Now, in the case before the court the material allegations of the complaint were, first, that the defendant was a common carrier ; that the horses and mules in question were shipped upon defendant’s road; and that they were injured before they reached their destination. There was certainly evidence as to all of these allegations, which prima facie should have carried the case to the jury. But the ground of the non-suit is, that an act of God (the earthquake) was the cause of the disaster ; that this fact appeared from the testimony of plaintiff’s witnesses on cross examination; true, not admitted in terms, but yet not controverted, and consequently, that fact stands in the case as substantially admitted, thus bringing the case under the rule of Pool v. Railroad Company, supra.

Where an act of God causes injury to property in the hands of a common carrier, and such act is the sole cause of such injury, then the proof of this fact is a perfect shield. But if there'be any negligence on the part of the carrier, which, if it had not been present, the injury would not have happened, notwithstanding the act of God, the carrier cannot escape responsibility. And the onus is upon the carrier to show not only that the act of God was the cause, but that it was the entire cause; because it is only when the act of God is the entire cause that the carrier can be shielded. He insures against everything except the act of God and the public enemies, and unless he proves that the disaster was due wholly and entirely to one of these causes, then it must be presumed to be due, in part at least, to some other cause. And as against any other cause he is an insurer. The onus, then, is upon him to prove the absence of negligence unless, as we have said, the proof is that the act of God is the entire cause, which, if so, would of course in itself show the absence of negligence.

Now, the matter for the presiding judge to consider in this case, when -the motion for non-suit was made — inasmuch as the earthquake seemed to be the cause of the injury — was, whether it was the entire cause; if not, the question of negligence as contributing to said injury was still open, and being a matter of fact should have gone to the jury. But if it appeared that the earthquake was the entire cause, admittedly so, or at least not seriously controverted, then this negatived the idea of negligence contributory or otherwise, and there was no necessity for the case to be sent to the jury. Looking at the case when the plaintiff closed, and before the defendant was called upon to introduce witnesses to its defence, the case as made out by plaintiff’s witnesses, sustaining, as they did, the defendant’s defence, was not, in our opinion, such a case as demanded further investigation by a jury, because under the peculiar circumstances there was an absence of testimony to material allegations of the complaint, as in the case of Pool v. Railroad Company, supra.

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