The opinion of the Court was delivered by
Mr. Chief Justice Gary.
The following appears in the record:
“The above action was commenced in the Court of Common Pleas for York county, S. C., by Reonard B. Drennan, plaintiff’s intestate, by the service of a summons and complaint on the defendants., on the 6th day of October, 1910. The action was brought by said plaintiff, to recover the sum of $25,000 damages, actual and punitive, for personal injuries alleged to have been sustained by said plaintiff, at Wilson street crossing, in the city of Rock Hill, on July 12, 1910, through the alleged concurrent negligence, recklessness, wilfulness and wantonness of the defendants, as set out in the complaint. Thereafter, on the 20th day of
October, 1911, the said plaintiff, Leonard B. Drennan, died from typhoid fever, and the action was subsequently continued in the name of Lida E. Drennan, his widow and duly appointed administratrix, by an order of the Court of Common Pleas made in the action. The case was tried at the November, 1911, term of the Court for York county, and resulted in a verdict in favor of the plaintiff, for the sum of $15,000. During the progress of the trial the jury was sent to view the premises. A motion for a new trial was thereupon made upon the minutes of the Court, but the same was refused, and judgment was entered against the defendants.”
The defendants appealed upon exceptions, which will be reported.
The first question that will be considered, is presented by the exception numbered 1.
1
2
3
When the testimony was offered, the defendants’ attorneys did not object to its introduction, on the ground that it was irrelevant, but on the grounds, (1) that it was not in writing, and
(2)
that there was no allegation of the complaint, to which it was responsive. It will thus be seen, that the grounds mentioned in the exception, are not the same as were urged on Circuit. But, waiving such objection, the testimony was competent for the purpose of proving, that the defendants had notice of the dangerous condition at the crossing. Furthermore, it has not been made to appear, even if there was error, that it was prejudicial.
The second exception raises the next question for determination.
4
The rules of evidence are different in cases, where the injury at a crossing, results directly from the failure of the railroad company, to give the statutory signals, and in cases where the injury was proximately caused, by other acts of negligence. In cases where the injury is the direct result of a failure on the part of the railroad
company, to comply with the requirements of the statute, as to signals, it cannot escape liability, unless it shows, that in addition to a mere want of ordinary care the person injured, was at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law. In all other cases, it is only incumbent on the railroad company, to show a want of ordinary care, on the part of the person injured, which contibuted to the injury as a proximate cause, and without which the injury would not have occurred. By reference to the charge it will be seen, that his Honor, the presiding Judge, clearly instructed the jury as to this difference.
5
We proceed to consider the exceptions, attacking the constitutionality 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 engine 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, 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 constitutionality of said statute was determined in the case of
Kaminitsky
v.
Ry.,
25 S. C. 53. In that case the Court uses this language:
“It is said, that the provision in regard to the proof of negligence, was not really an amendment of the charter, but a change in the law of evidence. If this were so, it would not make it unconstitutional. ‘The right to have one’s controversies determined by existing rules of evidence, is not a vested right. Like other rules affecting the remedy,
they must, therefore, at all times, be subject to modification and control by the legislature.’ Coll. Con. Lim. 452, 453. We do not, however, consider that by the aforesaid provision the main object of the legislature, was to make a change in the law of evidence, but to induce compliance, with the previous requirement' as to signals. The rule of evidence as to negligence, was made to apply only in case of failure to give' the required signals, and it is manifest, that the purpose was to give an additional sanction to the provision, requiring the signals to be given.”
The Court then quotes with approval the following language from Pierce on Railroads, p. 460:
“A
railroad company, although no power is reserved to amend or repeal its charter, is- nevertheless subject, like individuals, to such police laws as the legislature may, from time to time, enact for the safety and health of citizens, and the general convenience and good order. Its property and essential franchises are, indeed, protected by the Constitution; but the company itself is not thereby placed above the laws. It was not the design of that instrument, to disarm the State of the power to pass laws to protect their lives, limbs, health, and morals of citizens, and to regulate their conduct towards each other, and the mode of using property, so that different owners may not injure each other. Such laws may incidentally impair the value of franchises, or of rights held under contracts, but they are enacted
diverso
intuitu, and are not within the constitutional inhibition.”
The rule as to classification, under the fourteenth amendment to the Federal Constitution, is thus' clearly stated by the Court, through Mr. Justice Van Devanter, in the case of
Lindsley
v.
Natural Carbonic Gas Co.,
220 U. S. 61:
“1. The equal protection clause of the fourteenth amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is
done, only, when it is without any reasonable basis, and, therefore, is purely arbitrary. 2.
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The opinion of the Court was delivered by
Mr. Chief Justice Gary.
The following appears in the record:
“The above action was commenced in the Court of Common Pleas for York county, S. C., by Reonard B. Drennan, plaintiff’s intestate, by the service of a summons and complaint on the defendants., on the 6th day of October, 1910. The action was brought by said plaintiff, to recover the sum of $25,000 damages, actual and punitive, for personal injuries alleged to have been sustained by said plaintiff, at Wilson street crossing, in the city of Rock Hill, on July 12, 1910, through the alleged concurrent negligence, recklessness, wilfulness and wantonness of the defendants, as set out in the complaint. Thereafter, on the 20th day of
October, 1911, the said plaintiff, Leonard B. Drennan, died from typhoid fever, and the action was subsequently continued in the name of Lida E. Drennan, his widow and duly appointed administratrix, by an order of the Court of Common Pleas made in the action. The case was tried at the November, 1911, term of the Court for York county, and resulted in a verdict in favor of the plaintiff, for the sum of $15,000. During the progress of the trial the jury was sent to view the premises. A motion for a new trial was thereupon made upon the minutes of the Court, but the same was refused, and judgment was entered against the defendants.”
The defendants appealed upon exceptions, which will be reported.
The first question that will be considered, is presented by the exception numbered 1.
1
2
3
When the testimony was offered, the defendants’ attorneys did not object to its introduction, on the ground that it was irrelevant, but on the grounds, (1) that it was not in writing, and
(2)
that there was no allegation of the complaint, to which it was responsive. It will thus be seen, that the grounds mentioned in the exception, are not the same as were urged on Circuit. But, waiving such objection, the testimony was competent for the purpose of proving, that the defendants had notice of the dangerous condition at the crossing. Furthermore, it has not been made to appear, even if there was error, that it was prejudicial.
The second exception raises the next question for determination.
4
The rules of evidence are different in cases, where the injury at a crossing, results directly from the failure of the railroad company, to give the statutory signals, and in cases where the injury was proximately caused, by other acts of negligence. In cases where the injury is the direct result of a failure on the part of the railroad
company, to comply with the requirements of the statute, as to signals, it cannot escape liability, unless it shows, that in addition to a mere want of ordinary care the person injured, was at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law. In all other cases, it is only incumbent on the railroad company, to show a want of ordinary care, on the part of the person injured, which contibuted to the injury as a proximate cause, and without which the injury would not have occurred. By reference to the charge it will be seen, that his Honor, the presiding Judge, clearly instructed the jury as to this difference.
5
We proceed to consider the exceptions, attacking the constitutionality 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 engine 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, 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 constitutionality of said statute was determined in the case of
Kaminitsky
v.
Ry.,
25 S. C. 53. In that case the Court uses this language:
“It is said, that the provision in regard to the proof of negligence, was not really an amendment of the charter, but a change in the law of evidence. If this were so, it would not make it unconstitutional. ‘The right to have one’s controversies determined by existing rules of evidence, is not a vested right. Like other rules affecting the remedy,
they must, therefore, at all times, be subject to modification and control by the legislature.’ Coll. Con. Lim. 452, 453. We do not, however, consider that by the aforesaid provision the main object of the legislature, was to make a change in the law of evidence, but to induce compliance, with the previous requirement' as to signals. The rule of evidence as to negligence, was made to apply only in case of failure to give' the required signals, and it is manifest, that the purpose was to give an additional sanction to the provision, requiring the signals to be given.”
The Court then quotes with approval the following language from Pierce on Railroads, p. 460:
“A
railroad company, although no power is reserved to amend or repeal its charter, is- nevertheless subject, like individuals, to such police laws as the legislature may, from time to time, enact for the safety and health of citizens, and the general convenience and good order. Its property and essential franchises are, indeed, protected by the Constitution; but the company itself is not thereby placed above the laws. It was not the design of that instrument, to disarm the State of the power to pass laws to protect their lives, limbs, health, and morals of citizens, and to regulate their conduct towards each other, and the mode of using property, so that different owners may not injure each other. Such laws may incidentally impair the value of franchises, or of rights held under contracts, but they are enacted
diverso
intuitu, and are not within the constitutional inhibition.”
The rule as to classification, under the fourteenth amendment to the Federal Constitution, is thus' clearly stated by the Court, through Mr. Justice Van Devanter, in the case of
Lindsley
v.
Natural Carbonic Gas Co.,
220 U. S. 61:
“1. The equal protection clause of the fourteenth amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is
done, only, when it is without any reasonable basis, and, therefore, is purely arbitrary. 2. A classification having some reasonable basis, does not offend against that clause, merely because it is not made with mathematical nicety, or, because in practice, it results in some inequality. 3. When the classification in such a law, is called in question, if any state of facts reasonably can be conceived, that would sustain it, the existence of that state of facts, at the time the law was enacted, must be assumed. 4. One who assails the classification in such a law, must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.”
Section 3139 of the Code of Laws, was the outgrowth of the necessity for legislation, to protect the traveling public, at highway crossings, and it is peculiarly applicable to railways—in fact, it is difficult to conceive, how any but railways, could be included in the classification. This case, therefore, is embraced within the principles, announced in the case last mentioned.
We proceed to consider, whether the said section, is in violation of the fourteenth amendment to the Constitution of the United States, which provides that no State shall deprive any person of life, liberty or property, without due process of law.
In construing section 2139 of the Code of Laws, the Court stated in
Kaminitsky
v.
Ry.,
25 S. C. 53, that the main object of that section, was not to make a change in the law of evidence, but to induce compliance with the statutory requirements, as to signals. But even if the intention of said section, was to change the rules of evidence, in the manner therein stated, it would not be repugnant to the provisions of the fourteenth amendment to the Federal Constitution, as to due process of law. Rules of evidence may be changed whenever the grounds for such change are reasonable. A conspicuous instance of such change, appears in section 15, article IX of the Constitution, which
provides that “knowledge by any employee injured, of the defective or unsafe character of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors or engineers, in charge of dangerous or unsafe cars, or engines voluntarily operated by them.” Another instance of such change, appears in the act of Congress, approved the 11th of June, 1906, which provides, that in all actions brought against common carriers, to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence, shall not bar a recovery, where his contributory negligence is slight, and that of the employer was gross, in comparison, but the damages shall be diminished by the jury, in proportion to the amount of negligence, attributable to such employee. One reason for the change in the rules of evidence by section 2139 of the Code of Laws is, that in many instances the party colliding with the train of cars, is instantly killed, and the railroad company would have a decided advantage, if it was only required to prove, that the person injured was guilty of ordinary contributory negligence. The necessity of the case, requires proof of more than ordinary negligence, on the part of the person injured. A like necessity caused a change in the rules of evidence, where cattle were killed by a railroad train, as will be seen by the case of
Danner
v. Ry., 4 Rich. 329, in which it was held, that there was a presumption of negligence arising from the mere act of killing the stock.
The next question that will be considered, is presented by the fourth exception.
6
When the charge is considered in its entirety, it will be seen that his Honor, the presiding Judge, instructed the jury, that the basis of recovery by the plaintiff, was the amount of actual damages sustained by her intestate. But even if he had charged as contended by
the appellant’s attorneys, it would not have constituted error.
Sullivan
v.
Ry.,
85 S. C. 532, 67 S. E. 905.
7
The last question is, whether there was error in refusing the motion for a new trial, on the ground that the verdict was arbitrary, and was the result of sympathy, passion and prejudice. There is nothing in the record tending to show such fact.
Judgment affirmed.
Mr. Justice; Watts
disqualified.