Harley v. Railroad Co. , 31 S.C. 151 ( 1889 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

The action below was ah action by respondent against the defendant to recover damages for certain stock alleged to have been negligently killed by defendant company, to wit: a cow alleged to have been run over by the locomotive of defendant and killed. The verdict was for the plaintiff, and the defendant has appealed upon several exceptions which will be found in the uCase.’’ Only one of these exceptions, however, has been pressed here, and that is as follows: The .defendant requested his honor to charge: “That where the stock law is in force, the defendant is not required to use the same care and caution as in localities where such law is not in force.” It is stated that his honor unqualifiedly refus.ed this request.

It seems to have been in evidence that the stock law was in force where the cow was killed, or at least it is stated that in the course of the trial it was found that the general stock law was of force at that point. Therefore what effect it should have upon the question of negligence, which was the gist of the action, was a material matter, bearing upon the effort of the defendant to remove the prima facie presumption of negligence arising upon the mere fact of the killing. We think, therefore, that the request was an appropriate request, and the Circuit Judge was in error to refuse it. And inasmuch as this court has several times had this matter under consideration, we deem it unnecessary to do more than to refer to the following cases, where this question was discussed and adjudged: Simkins v. Railroad Company, 20 S. C., 258 ; Joiner v. Railroad Company, 26 Id., 49; Jones v. Railroad Company, 20 Id., 249; and Molair v. Port Royal & Augusta Railway Company, 29 Id., 159. Under these cases it was error in the Circuit Judge to overrule defendant’s request.

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