Kennedy v. Southern Ry. Co.

38 S.E. 169, 59 S.C. 535, 1901 S.C. LEXIS 68

• Court: Supreme Court of South Carolina
• Decided: March 19, 1901
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chiee Justice McIvER.

By reason of the death of the stenographer who took down the testimony in this case, the same could not be set out in the “Case,” and, therefore, we know nothing of it except what may appear in the Judge’s charge, which, with the exceptions, should be incorporated by the Reporter in his report of the case, as they will sufficiently show what points are presented for our consideration ; and, therefore, we. need not undertake to set out here in detail the allegations in the pleadings or the exceptions to the charge. It is sufficient to say that the object of the action was to recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of defendant in failing to provide a safe place for him to alight from the train, when it reached the point at which he desired to leave the train; and that the only defense set up in the answer was a denial of each and every allegation in the complaint.

It seems to us that the only question presented by this appeal is whether there was any error on the part of the Circuit Judge in instructing the jury that, under a general denial, and in the absence of any plea of contributory negligence, they could not consider whether the plaintiff’s negligence was the sole cause of the injury of which he complains. In other words, the question is whether the defendant, under a general denial, may controvert the allegation that the plaintiff’s injuries were caused by the defendant’s negligence, by showing that they were, in fact, caused by the plaintiff’s own negligence, or that of some third person, and, therefore, were not caused by the defendant’s negligence. It seems to us that both reason and authority require us to answer this question in the affirmative. If a person is charged with having caused an injury to another by reason of his negligence, surely it is both reasonable and logical for him to say, “I deny the charge, and support such denial by showing that the injury complained of was caused by the negligence of the party injured, or that of some other-person, and, therefore, I am not the cause of the injury complained of.” If a „ person is charged with taking the life of another, it is certainly competent for him to deny the charge, and sustain such denial by showing that the party took his own life, or that his death resulted from some other agency, for which the party charged was not responsible. Indeed, this seems to us to be the strongest form of denial, for if it is shown that the act or omission complained of was the result of some other agency than the act of the party charged, then it is shown that he, not only did not do the act, but that it was impossible that he could have done it. But without pursuing the argument further, we will proceed to show that the authorities sustain this view of it. In 1 Encycl. of Plead. & Prac., in note 2, page 824, cited by counsel for appellant, it is said, “under a general denial, the fact that the injury was caused by the negligence of others, may be shown;” and quite an array of cases from other States are cited to sustain this proposition. But we have a recent case in our State, which, in principle, sustains our view -Wilson v. Railway, 51 S. C., 79-in which Mr. Justice Gary, in delivering the opinion of the Court, uses this language: “The first question raised by the exceptions is, ‘was there error on the part of the presiding Judge in excluding testimony offered in behalf of the defendant, for the purpose of showing that the injury was caused by the negligence of a fellow-servant, on the ground that it referred to the defense of co-employee, which could not be raised under the pleadings.’ ” And after proceeding to state the allegations of the complaint, and showing that the testimony was competent for another reason, proceeds to say: “but it was also competent for the purpose of showing a failure of negligence on the part of the defendant by establishing the fact that the injury was caused by the negligence of a fellow-servant;” and he proceeds to sustain that proposition by quoting from sec. 671 of Pom. on Remedies — that standard authority on the Code — the following: “Evidence which is, in its nature, affirmative, is often confounded with defenses which are essentially affirmative and in avoidance of the plaintiff’s cause of action, and is, therefore, mistakenly regarded as new matter requiring to be specially pleaded, although its effect upon the issue is strictly negative, and it is entirely admissible under an answer of denial. In other words, in order that evidence may be proved (admitted?) under a denial, it need not be, in its nature, negative; affirmative evidence may often be used to contradict an allegation of the complaint, and may, therefore, be proved to maintain the negative issue raised by the defendant’s denial. One or two familiar examples will sufficiently illustrate the proposition. In certain actions, property in the plaintiff, in respect to the goods which are the subject matter of the controversy, is an essential element of his claim. His complaint, therefore, avers property in himself; the allegation is material, and is, of course, put in issue by the general or specific denial * * * The defendant may controvert this fact in two modes. He may strictly contradict, and destroy the effect of the plaintiff’s proof, and in this purely negative manner procure, if possible, a decision in his own favor upon this issue. * * * On the other hand, the defendant not attempting directly to deny the testimony of the plaintiff’s witnesses, and to overpower its effect by direct contradictory proof, may introduce evidence tending to show that the property in the goods is, in fact, in a third person. This evidence, if convincing, would defeat the plaintiff’s recovery. It would be affirmative in its direct nature; but its ultimate effect in the trial of the issue raised by the answer would be to deny the truth of the plaintiff’s averment. Such evidence, although immediately affirmative, would still, for the purpose of determining the issue presented by the pleadings, be negative.” This is immediately followed by a quotation from sec. 675 of the same valuable work, which seems to be directly applicable to the question we are considering, in these words: “In actions for injuries to person or property, alleged to have resulted from the defendant’s negligence, he may prove under a general denial, that the wrong was caused by the negligence of third persons, not agents of the defendant, and for whom he was not responsible.” Further on in his opinion, at page 95, his Honor, Judge Gary, clearly points out the distinction1 between the well settled rule (in this State, at least), that where a party desires to avail himself of the defense of contributory negligence, he must set up such defense in his answer, in order to entitle him to offer evidence to sustain such defense, and he gives the reason for such distinction in the following language: “The reason why testimony is admissible, 'under a general denial, to prove that the injury was caused by the negligence of a fellow-servant, is because its tendency is to show that there was no negligence whatever on the part of the defendant. On the other hand, the reason why it is necessary to set forth in the answer the defense of contributory negligence on the part of the plaintiff, is because testimony showing such contributory negligence does not disprove the allegations of the complaint that the injury was caused by the negligence of the defendant. The defendant, by setting up in his answer the defense of contributory negligence on the part of the plaintiff, does not attempt to escape liability by showing a failure of negligence on his part, but because the plaintiff has done that which prevents a recovery against him, although he, the defendant, may have been guilty of negligence. Such facts would constitute an affirmative defense of which the defendant could not get the benefit, unless it was set up in the answer. The exceptions raising the first question are sustained.” Indeed, we may add, that the defense of contributory negligence, so far from tending to deny or disprove negligence on the part of the defendant, necessarily involves, by the very meaning of the term “contributory,” an admission of defendant’s negligence, but the plaintiff’s negligence combining and concurring with the negligence of defendant, as a proximate cause thereof, has produced the injury complained of. See 7 Am. & Eng. Ency. of Law (2d edit.), at page 371. Cooper v. Railway Co., 56 S. C., 91; Bowen v. Railway Co., 58 S. C., 222; Sims v. Railway Co., 26 S. C., at page 490.

Now, in this case, it is quite.certain that the defendant company not only did not, by its answer, either expressly or impliedly (by setting up the defense of contributory negligence), admit its own negligence, but on the contrary, expressly denied any negligence on its part; andj therefore, under the authority of the case of Wilson, above cited, had the right to offer evidence tending to show that the injuries complained of by plaintiff were due to his own negligence, and thus disprove the allegation that such injuries were due to the negligence of the defendant. If it should be said that Wilson’s case does not apply, because in that case the question arose as to the competency of the evidence, while -here it does not appear .that any such question was raised, the answer is obvious. While it is true that, owing to the unfortunate death of the stenographer, his notes of the testimony, and what occurred while it was being developed, could not be obtained, and is not, therefore, set out in the “Case,” yet there is enough in the charge of the Circuit Judge to warrant the inference that such testimony was offered and rejected. Eor some of the language used by the Circuit Judge in his charge would have been absolutely meaningless, unless such testimony had been offered, and this our great respect for the intelligence and fairness of the Circuit Judge would absolutely forbid us 'to assume. The following language was used by the Circuit Judge in his charge to the jury: “I charge you, furthermore, in this case it is not charged and is not pretended that the people who had charge of that train on that morning did anything, or omitted to do anything, that they ought to have done. The sole contest is whether the place they put Mr. Kennedy out on was a safe place. I charge, you cannot consider whether or not Mr. Kennedy acted with ordinary care, because'when the railroad company put in their answer they did not advise him that they were going to prove that this thing occurred by his negligence, and not by the negligence of the railroad company; therefore, they can offer no testimony to show that he was negligent.” It seems to us that the language of the Circuit Judge, which we have italicized, clearly implies that the defendant did offer testimony tending to show the negligence of the plaintiff. What else could the statement that the defandant company, for the reason given, “can offer no testimony to show that he (meaning the plaintiff) was negligent,” mean ? But even if it be assumed that no such testimony was offered by the defendant, still we think there was error on the part of the Circuit Judge, in refusing the defendant’s fourth and fifth requests to charge, under the principles established by Wilson’s case, supra. It is true, that the “Case” does not show that the Circuit Judge, in express terms, refused to charge defendant’s fifth request, but he certainly did not charge that request, for he said nothing about it; and as the whole tenor of his charge was in direct conflict with that request, it must be regarded as having been refused. If, as held in Wilson’s case, it was competent for the 'defendant to offer testimony, under a general denial, tending to show that the plaintiff’s injuries were caused by his own negligence, and in that way sustain its denial of the allegation that the negligence of the defendant caused plaintiff’s injuries, then clearly, upon the same principle, it was not only the right but the duty of the jury to consider the question whether the negligence of the plaintiff caused his injury. If so, then unquestionably, there was error in instructing the jury that they could not consider any such question. Even if there was no testimony adduced by the defendant, tending to show that plaintiff’s injuries were caused by his own negligence, yet there may have been in the testimony adduced by the plaintiff facts and circumstances tending to show negligence on’his part; and, as we have said above, there must have been some such testimony in the case, for otherwise the manifest effort of the Circuit Judge to impress upon the jury the idea that, under the pleadings in this case, they could not consider such testimony, would have been worse than idle. It seems to us clear that this case has been tried by the jury under erroneous instructions as to the. law applicable to it, and that the exceptions to the charge must be sustained.

The judgment of this Court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.

Mr. Justice Gary dissents.