The opinion of the court was delivered by
Me. Justice McGowan.
This case has been in this court before. See Madden v. Railway Company, 35 S. C., 382. When the case went back, the plaintiff was allowed to amend her complaint; and alleged as follows:
“I. That the defendant, the Port Royal and Western Carolina Railway Company, is a body politic and corporate under the laws of the State of South Carolina, and is competent to sue and be sued in this State; that it owns property and operates Gains within the limits of this State. II. That said defendant is, and was at the time hereinafter stated, a common carrier of passengers thereupon for hire between the places hereinafter mentioned, to wit: Laurens Court House, South Carolina, and High Point, South Carolina. III. That on April 29, 1890, the defendant received the plaintiff iuto one of its passenger cars, for the purpose of carrying her therein and upon said railroad, as a passenger from Laurens Court House to High Point, in said county and State, for the sum of forty-five cents, paid to the defendant by the plaintiff. IV. That [451]*451it was the duty of the defendant, common carrier, to have a suitable stopping place at the station at High Point, and to provide a foot-stool at the steps of said car for the use of passengers alighting from said train. V. That at the time aforesaid the defendant, in carrying the said plaintiff as passenger, negligently failed to stop its train at the usual stopping place at High Point, but stopped some distance from said usual stopping place, at a point where the distance from the steps of said train to the ground was considerable and unsafe, the said defendant well knowing that the said plaintiff was a lady in delicate health, and that it was dangerous for'said plaintiff to alight from the train without the use of the foot-stool, which was not there provided for her, although it was the duty and custom of the defendant so to provide, and defendant’s servants then and there instructed her to alight from said train. VI. That in consequence of the negligence of the defendant as aforesaid, and in consequence of said train stopping only a short time, the plaintiff, at said time and place, in alighting from said train to the ground (in pursuance of said instructions) a considerable distance, and in so doing was injured in her person by the displacement of her womb, and by the formation of a large abscess behind the bowels, as well as in other respects, and that her said injuries are of a permanent character. VII. That by reason thereof, the plaintiff became for a long time ill, and was obliged to engage a skilled physician,' and is still under medical treatment, and was prevented from attending to her duties, and was made sick, sore, lame, and disabled, and was otherwise injured, to her damage ten thousand dollars, &c., $10,000.”
The defendant company interposed a general denial,- and for “a second defence alleges that the plaintiff, if injured at all, was injured solely by reason of her own negligence, in that plaintiff, having full knowledge of her own physical condition, and having full knowledge of the character of the place where plaintiff alighted from the cars of defendant, and having full knowledge of the danger of so alighting, nevertheless voluntarily alighted in such place, and while in such delicate condition, without any compulsion on the part of defendant or any of its servants. [452]*452Wherefore, denying all legal damages, the defendant prays hence to be discharged,” &c.
The cause came on to be heard by Judge Norton and a jury. The. testimony is all in the record. . The defendant made many requests to charge. The judge made a full and careful charge — • first, on the law of the whole case, as if there had been no requests, and then second, taking up the requests, some of which he charged, others with modifications, and still others he refused — those which he had already charged, or assumed the existence of facts foreign to the case. The jury found for the plaintiff $5,000. The defendant made a motion for a new trial on the minutes of the court, which being refused, they now appeal to this court upon numerous exceptions (forty in number), alleging errors of law in charging, refusing to charge, and in statements and rulings of the court. The exceptions are not only numerous, but long and argumentative — consisting largely of extracts, detached from the contexts of the charge, and covering more than ten printed pages of the record; so that it is utterly impossible, within reasonable compass, to consider them seriatim; but we will endeavor to consider all the real points made, by grouping the exceptions in something like what seems to be their natural order.
1 It is a wholesome doctrine, and well established in this State, that in considering alleged errors in a charge, the charge must be considered as a whole, and not in detached portions. See Bauskett v. Keitt, 22 S. C., 187. “In examining the charge for the purpose of ascertaining its correctness in point of law, the whole scope and bearing of it must be taken together.” (I hope the whole charge will appear in the report of the case.)
Exceptions 1, 2, 5, 6, 7,15,17, and 18, grouped in appellant’s argument here as “Class I.,” make objections to those parts of the chai'ge in which, as alleged, the judge failed to represent correctly to the jury the issues to be tried by them.
2 (1) The court charged the jury: “She alleges the duty of the railroad company in this paragraph: ‘That it was the duty of the defendant, common carriers, to have a suitable stopping place at the station at High Point,’ &c. That she [453]*453alleges to be the duty of the railroad company, under the circumstances surrounding this case,” &c. As we understand it, the objection to the remark of the judge was not that it was beyond the allegations of the complaint, but as not being in conformity with the actual case made — “in resting only on the alleged negligence in running the cars too far;” which, however, in that instance, practically made that — -the running of the cars too far- — the same to the plaintiff as if there had been no regular stopping place.
3 (2) The court charged the jury that: “The railroad company sets up as a defence, by way of counter-claim, that the plaintiff was injured by reason of her own negligence.” We agree that contributory negligence does not technically constitute a “counter-claim.” There can be no doubt, however, as to what the judge meant. He adopted it as a strong word to make it quite clear to the jury, that it was as necessary for the plaintiff to prove her claim of negligence, as it was for the company, on the other hand, to prove their allegation of contributory negligence against the plaintiff.
4 (3) Exceptions 5, 6, 7, 15, 17, and 18 make objection to certain remarks of the Circuit Judge, as to points “disputed” between the parties, as “admissions,” “allegations,” &c. But these were all explained in the settlement of the case by the judge, who, after argument before him, directed the following amendment of the case: “Admissions and allegations were made, as stated in the charge of the presiding judge. These did not, however, allude generally to formal solemn ‘admissions’ on the record or allegations in the pleadings, but to admissions and allegations in the argument of counsel,” &c.
5 Glass II.
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The opinion of the court was delivered by
Me. Justice McGowan.
This case has been in this court before. See Madden v. Railway Company, 35 S. C., 382. When the case went back, the plaintiff was allowed to amend her complaint; and alleged as follows:
“I. That the defendant, the Port Royal and Western Carolina Railway Company, is a body politic and corporate under the laws of the State of South Carolina, and is competent to sue and be sued in this State; that it owns property and operates Gains within the limits of this State. II. That said defendant is, and was at the time hereinafter stated, a common carrier of passengers thereupon for hire between the places hereinafter mentioned, to wit: Laurens Court House, South Carolina, and High Point, South Carolina. III. That on April 29, 1890, the defendant received the plaintiff iuto one of its passenger cars, for the purpose of carrying her therein and upon said railroad, as a passenger from Laurens Court House to High Point, in said county and State, for the sum of forty-five cents, paid to the defendant by the plaintiff. IV. That [451]*451it was the duty of the defendant, common carrier, to have a suitable stopping place at the station at High Point, and to provide a foot-stool at the steps of said car for the use of passengers alighting from said train. V. That at the time aforesaid the defendant, in carrying the said plaintiff as passenger, negligently failed to stop its train at the usual stopping place at High Point, but stopped some distance from said usual stopping place, at a point where the distance from the steps of said train to the ground was considerable and unsafe, the said defendant well knowing that the said plaintiff was a lady in delicate health, and that it was dangerous for'said plaintiff to alight from the train without the use of the foot-stool, which was not there provided for her, although it was the duty and custom of the defendant so to provide, and defendant’s servants then and there instructed her to alight from said train. VI. That in consequence of the negligence of the defendant as aforesaid, and in consequence of said train stopping only a short time, the plaintiff, at said time and place, in alighting from said train to the ground (in pursuance of said instructions) a considerable distance, and in so doing was injured in her person by the displacement of her womb, and by the formation of a large abscess behind the bowels, as well as in other respects, and that her said injuries are of a permanent character. VII. That by reason thereof, the plaintiff became for a long time ill, and was obliged to engage a skilled physician,' and is still under medical treatment, and was prevented from attending to her duties, and was made sick, sore, lame, and disabled, and was otherwise injured, to her damage ten thousand dollars, &c., $10,000.”
The defendant company interposed a general denial,- and for “a second defence alleges that the plaintiff, if injured at all, was injured solely by reason of her own negligence, in that plaintiff, having full knowledge of her own physical condition, and having full knowledge of the character of the place where plaintiff alighted from the cars of defendant, and having full knowledge of the danger of so alighting, nevertheless voluntarily alighted in such place, and while in such delicate condition, without any compulsion on the part of defendant or any of its servants. [452]*452Wherefore, denying all legal damages, the defendant prays hence to be discharged,” &c.
The cause came on to be heard by Judge Norton and a jury. The. testimony is all in the record. . The defendant made many requests to charge. The judge made a full and careful charge — • first, on the law of the whole case, as if there had been no requests, and then second, taking up the requests, some of which he charged, others with modifications, and still others he refused — those which he had already charged, or assumed the existence of facts foreign to the case. The jury found for the plaintiff $5,000. The defendant made a motion for a new trial on the minutes of the court, which being refused, they now appeal to this court upon numerous exceptions (forty in number), alleging errors of law in charging, refusing to charge, and in statements and rulings of the court. The exceptions are not only numerous, but long and argumentative — consisting largely of extracts, detached from the contexts of the charge, and covering more than ten printed pages of the record; so that it is utterly impossible, within reasonable compass, to consider them seriatim; but we will endeavor to consider all the real points made, by grouping the exceptions in something like what seems to be their natural order.
1 It is a wholesome doctrine, and well established in this State, that in considering alleged errors in a charge, the charge must be considered as a whole, and not in detached portions. See Bauskett v. Keitt, 22 S. C., 187. “In examining the charge for the purpose of ascertaining its correctness in point of law, the whole scope and bearing of it must be taken together.” (I hope the whole charge will appear in the report of the case.)
Exceptions 1, 2, 5, 6, 7,15,17, and 18, grouped in appellant’s argument here as “Class I.,” make objections to those parts of the chai'ge in which, as alleged, the judge failed to represent correctly to the jury the issues to be tried by them.
2 (1) The court charged the jury: “She alleges the duty of the railroad company in this paragraph: ‘That it was the duty of the defendant, common carriers, to have a suitable stopping place at the station at High Point,’ &c. That she [453]*453alleges to be the duty of the railroad company, under the circumstances surrounding this case,” &c. As we understand it, the objection to the remark of the judge was not that it was beyond the allegations of the complaint, but as not being in conformity with the actual case made — “in resting only on the alleged negligence in running the cars too far;” which, however, in that instance, practically made that — -the running of the cars too far- — the same to the plaintiff as if there had been no regular stopping place.
3 (2) The court charged the jury that: “The railroad company sets up as a defence, by way of counter-claim, that the plaintiff was injured by reason of her own negligence.” We agree that contributory negligence does not technically constitute a “counter-claim.” There can be no doubt, however, as to what the judge meant. He adopted it as a strong word to make it quite clear to the jury, that it was as necessary for the plaintiff to prove her claim of negligence, as it was for the company, on the other hand, to prove their allegation of contributory negligence against the plaintiff.
4 (3) Exceptions 5, 6, 7, 15, 17, and 18 make objection to certain remarks of the Circuit Judge, as to points “disputed” between the parties, as “admissions,” “allegations,” &c. But these were all explained in the settlement of the case by the judge, who, after argument before him, directed the following amendment of the case: “Admissions and allegations were made, as stated in the charge of the presiding judge. These did not, however, allude generally to formal solemn ‘admissions’ on the record or allegations in the pleadings, but to admissions and allegations in the argument of counsel,” &c.
5 Glass II. consists of exceptions alleging error in charging that certain acts will, or will not, constitute negligence, in the view that to charge the duty of a person to do a certain thing is to charge that that person would be negligent if he omitted to do so; whereas it is in the exclusive province of the jury to say what constitutes negligence, and what is the duty of a party, under all the circumstances of the case. As, for example: “Exception 4. The court charged the jury as follows: ‘It was then the duty of the company, as a common car[454]*454rier, if it was a common carrier, to provide for the safe carriage of the passengers; not merely to carry the passengers while they were on its train safely along the road between the two points. It was its duty to provide a safe and suitable place for the plaintiff to enter the cars, and it was its duty to stop at each of its stations, which it had provided for passengers to enter and leave the cars. It was its duty to stop at all these stations, and to provide for the plaintiff here to get off safely. It was its duty to stop at this station, and to provide a means by which she might get off at this station,’ &c. It is submitted that it should have been left to the jury to say whether- these things were duties of the company, or not.” As we understand it, negligence is a mixed question of law and fact. It is for the court to say what it is, and to state, as matter of law, what are the duties of a common carrier, and then for the jury to apply the facts as proved, and say whether or not there was negligence or not. A high authority expresses the principle in this form: “The judge has to say whether auy facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether from these facts, when submitted to them, negligence ought to be inferred. The relevancy of evidence, and whether any exists, which tends to prove, or is capable of proving, negligence, is for the court.” See Hooper v. Railroad Company, 21 S. C., 549; Pierce R. R., 312, &c.
6 Exceptions 11 and 14 complain that the court charged: “You know, or are presumed to know, that it is the duty of* a conductor, when passengers need assistance in getting off a train, to assist them off * * * I charge you that if the conductor knew her (plaintiff’s) condition, then it was his duty to have provided suitable means, to provide against accident to her, in the condition in which he knew her to be,” &c. Was this error? It is urged upon us that our court has settled the identical question, in the case of Renneker v. South Carolina Railway Company, 20 S. C., 222, that there was “a common standard” for the accommodation of all railroad passengers, without regard to their physical condition, as being sick or well. By the most casual reading, it will appear that [455]*455there was not in that case any question as to knowledge on the part of the officers of the company of any infirmity of the passenger. On the former appeal in this case (35 S. C., 384,) this court held as follows, the Chief Justice speaking for the court: “While we fully endorse the rule as laid down in Renneker v. Railway Company, and recognized in the subsequent case of Simms v. Railway Company, 27 S. C., 271, as to the ‘standard’ by which the duty of a railroad company to provide for the security and safety of persons entering or leaving its trains, is to be tested, yet we do not see its application to a case like the present, where the allegation is not only that the infirmity of the plaintiff was well known to the defendant, but also that it was dangerous for her to alight from the train without the aid of a footstool, which was the custom of the defendant to provide, but which was not provided in this instance. The allegation of knowledge on the part of defendant was sufficient,” &c. “Where the railway voluntarily accepts as a passenger one whose physical disability is apparent, or is made known to its servants, and renders special assistance necessary, the railway is negligent if such assistance be not furnished.” 2 Am. & Eng. Enc. Law, 767, and notes; Pat. By. Acc. Law, § 278. We do not think that the charge complained of here was erroneous.
7 Exception 30 complains that, after charging the jury as requested by the defendant, “if the conductor did not know that plaintiff was in a delicate condition, and stopped the train in a place safe for a sound person, he would not be negligent,” the court added: “If he did not know, and is not chargeable with such knowledge. Being chargeable with the knowledge means whether he ought to have remembered it from the time he was told of it, if he had been told of it-previously.” This was a matter entirely for the jury, and it was properly referred to them.
8 Exception 32. After charging the 18th request of defendant, to the effect that it was incumbent on the plaintiff to show that the train on which she was injured was being operated by the defendant company, the court added: “Yon are to take all the circumstances in the case, and [456]*456from them determine, if you can, that this railroad company (which is the defendant and answers in this case, and admits that it is a corporation,) was the company that sold the ticket to Miss Madden. You are to determine whether the company which sold the ticket to Miss Madden operated the train, and whether it is the company which is responsible to her, if any company is responsible,” &c. There was not an intimation in the pleadings that the ivrong party was sued. At the instance of the defendant, the whole matter was left entirely to the jury, and this court can not review their decision on the facts.
9 Exception 28. Because the court erred in'charging the jury as follows: “In order to make out the defence of contributory negligence, it must be proved by the defendant by a preponderance of the testimony, and it must show that the plaintiff was negligent, and that her negligence was a cause, or one of the proximate causes, of the injury, as it was the duty of the plaintiff to make out her case in accordance with the law as I have charged it to you,” &c. Of course, the judge did not mean that the plaintiff’s negligence could not be made to appear from her own evidence, as well as from the evidence of the defendant.
10 Exception 24. Because the court erred in charging the jury: “Of course, if you think it was negligence in her not to have, under the circumstances, seen the absence of the stool, and that she was not hindered from seeing it by her skirts, as she says she was, but went recklessly along- — I will not say 'recklessly,’ because that implies gross negligence— • but went negligently along, and took her step without making any observation at all, then she would be guilty of contributory negligence.” We can not see that the defendant has any right to complain of this charge. Many of the other exceptions make, in different forms, the same points; some of them are too general to be considered; and even, if they were not, the points raised thereby have been considered and disposed of in other portions of this opinion.
[457]*45711 12 [456]*456The Circuit Judge did not charge the requests of the defendant numbered 1, 3, 5, 7, 8, 9, 12, and 13, which are all printed in full in the record, and need not be again stated here. [457]*457Upon examination it will be seen that they relate to matters of fact, and that it would have been manifest error to have charged them. It appears in the case that the judge intended to charge the “request No. 5,” and had so marked it; but in the confusion produced by such a multitude of papers, it was overlooked, and not given to the jury. This oversight, however, was entirely harmless to the defendant. The request was in these very familiar words: “Ordinary care is that degree of care which prudent persons use in the conduct of their own affairs;” and this very common definition of ordinary care, almost in the indentical words with the request, was announced more than once in the course of the previous charge. ‘ ‘It is not error to refuse abstract propositions of law, already covered by the charge.” See Washington &c. R. R. Co. v. McDade, 135 U. S., 554.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
13 In this case the defendant filed a petition for a rehearing, alleging error in the ruling of this court on its exceptions numbered 11, 34, 36, 37, 38, and 39. Upon this order the Chief Justice and Mr. Justice Pope (Mr. Justice McGowan’s term of office having expired) endorsed an order September 14, 1894, in the same words as in the case of Anderson v. Pilgram, ante, 440.