Harbert v. Railway Co.

December 4, 1907. The opinion of the Court was delivered by This is an action for damages alleged to have been sustained in consequence of the negligent and wilful misconduct of the defendant, which resulted in the killing of the plaintiff's intestate while traveling the public highway at a crossing.

The complaint alleges that the train of cars was being run at a high and rapid rate of speed, and that there was a failure to give the statutory signals.

After denying the allegations of negligence and wilful misconduct, the defendant alleged that if the plaintiff's intestate was killed, his death was caused by his own negligence.

The answer also contained the following: "As a further defense, and for the purposes of this defense only, the defendant alleges that the deceased was guilty of negligence, which contributed as a proximate cause to his death, along with the alleged negligence of the defendant, if any, in the matters complained of in the complaint, in the following particulars: That the said James A. Harbert was at the time he was killed walking upon the railroad track, where he had no legal right to be, in an intoxicated condition, and failed to exercise ordinary care in looking out for the approach of the train which is alleged to have struck him; that he was guilty of gross negligence in going upon the railroad track in an intoxicated condition, and in not stopping, listening and looking for an approaching train; and said contributory negligence is hereby pleaded as a bar to this action."

The jury rendered a verdict in favor of the plaintiff for $10,000.

A previous verdict of $8,000 was set aside on the ground that the train which killed the deceased was not operated by the defendant, but by the Southern Railway Company, his Honor, the presiding Judge, basing his order upon the case of Pennington v. Ry., 35 S.C. 439, 14 S.E., 852.

The exceptions will be set out in the report of the case, and considered in their regular order.

First, Second and Third Exceptions: The testimony mentioned in these exceptions was merely explanatory of the locality where the injury was sustained, and the exceptions are therefore overruled.

Fourth Exception: When Rice was on the stand the following took place: "Q. Didn't you on that same occasion say, in the presence of Mr. John Harbert and myself, that you went straight on from the north switch to Mr. Frick's, and that you met no one, and just as you went in his house thirty-eight came along, or words to that effect? A. I guess I did. Q. Didn't you say that? A. Yes, sir; I guess I did."

It will thus be seen that Rice was asked if he did not make substantially the same statement as that mentioned in the exception, and that he admitted such fact. There was, therefore, no error prejudicial to the appellant. State v.Sullivan, 43 S.C. 205, 21 S.E., 4.

Fifth and Sixth Exceptions: There are two reasons why these exceptions cannot be sustained.

In the first place, the fact that the statement may have been made in the presence of the plaintiff did not dispense with the necessity of laying the foundation for contradicting the witness; and, in the second place, the appellant has failed to satisfy this Court that the testimony was material.

Seventh Exception: The charge set out in the request must be considered in connection with the other portions thereof, which show that the law as to the defenses not mentioned in the request was properly submitted to the jury; and further, that his Honor the presiding Judge charged, that "the plaintiff before he can recover must establish the allegations of his complaint by the preponderance of the testimony; and you must be satisfied that there was a failure on the part of the railroad company to give the signals as required by law, before you can find for the plaintiff."

Eighth Exception: We fail to find where the Circuit Judge charged the jury, that the plaintiff could recover if the negligence of the deceased contributed to the injury as a proximate cause. Conceding that the pleadings did not specifically raise the question whether the defendant kept a proper lookout for travelers at the crossing, or gave due warning signals of danger, nevertheless the charge was responsive to the testimony.

Ninth Exception: The charge, was in substance, that if the negligence of the defendant was the proximate cause of the injury, and the negligence of the deceased was not the proximate cause, then the plaintiff would be entitled to recover; and in this we see no error.

Tenth Exception: The defense of contributory negligence upon which the appellant relied is based upon the provisions of section 2139 of the Code of Laws, which is as follows: "If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this chapter, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment, as provided in the preceding section, unless it is shown that, in addition to a mere want of ordinary care, the person injured, or the person having charge of his person or property, was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law; and that such gross or wilful negligence or unlawful act contributed to the injury."

The law charged in the request was undoubtedly correct as a general proposition. LaFitte v. Ry., 73 S.C. 467,53 S.E., 755. And we are unable to discover in section 2139, supra, any language indicating an intention to change the rule.

That section makes no reference whatever to wilful misconduct on the part of the railroad company, but provides that it shall be liable, if it neglects to give the required signals, unless it is shown that the party injured was guilty of the conduct therein mentioned.

The exception must, therefore, be overruled.

Eleventh Exception: It will be observed that the appellant does not contend that the proposition of law mentioned in the exception was erroneous, except in so far as it was inapplicable to the case under the pleadings. It has not, however, been made to appear that it was inapplicable, as it was the mere statement of a general principle that might properly be charged in all cases arising under the statute requiring signals at highway crossings.

Twelfth Exception: Conceding the right for which the appellant contends, the error was not prejudicial to it, as the testimony does not show that the railroad company attempted to exercise such right. The testimony in behalf of the defendant, was to the effect that the engineer simply blew the signal for the crossing, and then commenced to ring the bell by an automatic ringer, and that the ringing continued until the train had proceeded beyond the crossing.

The principle for which the appellant contends is, therefore, inapplicable to the facts of this case.

Thirteenth Exception: The proposition which the appellant contends should have been charged is distinct from that which was charged, and should have been presented in a separate request by the appellant. Moreover the charge embodied a sound proposition of law.

Fourteenth and Fifteenth Exception: The defendant not having demurred to the complaint, as a general proposition the charge was correct, and was responsive to the allegations of the complaint.

If there were reasons why punitive damages could not be recovered in this case, they should have been brought to the attention of the presiding Judge, in order that he might have had the opportunity of ruling upon the question; and, as there has not been a ruling upon the question, it is not properly before this Court for consideration. It would be unjust to the respondent, and likewise to the Circuit Judge, to reverse the judgment on a ground not made an issue by the pleadings, and upon which he was not requested to rule.

"A party ought not to be permitted to take the chances of a verdict in his favor, and wait until the verdict is rendered against him, before making any objection. If with the full knowledge of all the facts, he proceeds with the trial and takes the chances, he ought in justice and in fair dealing to submit to the consequences." Lee v. McLeod, 15 Nev., 163;State v. Norton, 69 S.C. 454, 48 S.E., 464.

This identical question was presented in the case of Ragsdale v. Ry., 60 S.C. 381, 38 S.E., 309. In that case this Court ruled that the charge was responsive to the issue made by the pleadings; and that, as the Circuit Judge was not requested to rule upon the question, the objection could not be interposed for the first time in the Supreme Court.

The principle announced in that case was affirmed inDent v. R.R., 61 S.C. 329, 39 S.E., 527, and Martin v.Ry., 70 S.C. 8, 48 S.E., 616.

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

MR. JUSTICE WOODS concurs in the result.