Thornton v. Spartan Mills , 98 S.C. 262 ( 1914 )

The opinion of the Court was delivered by

Mr. ChiEE Justice Gary.

This is an action for damages, alleged to have been sustained by the plaintiff through the negligence of the defendant.

After the close of the testimony, the attorneys for the defendant requested his Honor, the presiding Judge, to permit the jury to go to the scene of the accident, and examine the machine by which the plaintiff was injured, which request was refused. The accident occurred at Spartan Mills in the city .of Spartanburg, about a quarter of a mile from the courthouse.

The jury rendered a verdict in favor of the plaintiff for two thousand dollars, and the defendant appealed.

The first and second exceptions were not argued, and, therefore, will' not be considered.

The third and fourth exceptions are as follows: •

Third. “Error in charging the jury as follows, in connection with the charge on the assumption of risk and contributory negligence: ‘There are many who do not approve of that doctrine (meaning* the doctrine of assumption of risks and contributory negligence), and Congress has passed a law to abolish it, on the principle that self-preservation would cause a person to protect oneself.’ It being respectfully submitted, that in so charging, his Honor minimized the force and effect of assumption of risks and contributory negligence, giving* the jury to understand, that the highest authority in our government, did not look with favor upon it, and thus gave the jury an opportunity to take the same view as Congress. It being respectfully submitted that it was highly improper for his Honor to go out of the record and-make such remarks to the jury.”

Fourth. “Error in charging the jury, in connection with his charge of assumption of risks, as follows: ‘That does not mean that a person assumes the risks of negligence.’ Thus charging the jury that a servant does not assume the risks of defects and dangers, where the same is due to negligence of the master. It being respectfully submitted, that the said charge was erroneous and gave the jury to understand, that assumption of risk only applies to defects and dangers, not due to negligence by a master.”

1, 2 When those portions of the charge quoted in these exceptions are considered in connection with the entire charge, there is no reasonable ground for supposing that the result would have been different if his Honor, the presiding Judge, had not so charged.

The fifth exception is as follows:

Fifth. “Error in not sending the jury to the scene of the accident, or giving them an opportunity to go, so as to enable them to judge for themselves, whether or not the plaintiff could, and did, see the danger, which caused the injury, that being the only question in the case, especially as it appeared from the evidence, that the conditions and surroundings. were exactly the same at the trial, as when the accident happened, and especially as the evidence of the witnesses, as to what could be seen, was conflicting. It is submitted that under the circumstances, it was an abuse of discretion in not permitting the jury, or at least offer them an opportunity, to go to the scene of the accident.”

3 The appellant’s attorneys have failed to satisfy this Court that there was an abuse of discretion on the part of his Honor, the presiding Judge, in refusing the said request.

Judgment affirmed.

Footnote.—See note upon the allowance of a view by the jury in the discretion of the Judge. 42 L. R. Á. 368.