The opinion of the Court was delivered by
Mr. Chief Justice Pope.
This appeal involves questions as to the correctness of the charge of the Hon. Richard C. Watts, as presiding Judge, to the jury on the trial before them. The cause of action is the alleged negligence of the defendant in failing to comply with the requirements of the statute law as to ringing the bell or blowing the whistle of the engine, beginning at a distance of 500 yards of a crossing by said railway over a pubblic highway, and continuing to ring the bell or sound the whistle until after such highway
had been passed by such engine, and also the neglect to have the headlight on the engine kept burning at that time, whereby, it being a dark and windy night, the plaintiff came in collision with said engine and was instantly killed, to the plaintiffs damage $1,950. The defendant denied all these allegations of fact, and also alleged that the death of the plaintiff, if he was killed by the railway train, was not owing to any fault or negligence of the defendant, but was due to the fault and negligence of plaintiff’s intestate; that the intestate was guilty of contributory negligence, without which he would not have been killed; that the accident was the result of intestate’s gross negligence. Testimony was offered by both sides. Judge Watts charged the jury. Verdict was for defendant. After judgment, plaintiff appealed on the following grounds:
“1st. For that it is respectfully submitted, his Honor, the Circuit Judge, erred at the trial, in this: Plaintiff requested his Honor to instruct the jury as follows: ‘It is negligence
per se
(of itself) for a railroad to fail to give the signals at crossings, as required by statute;’ and he erred when he modified said request as follows: T charge you that, but don’t charge you that in that language. I charge you as a matter of law that wherever the railroad fails to give those signals at crossings, as required by statute, it violates the statute law of the State; and if a man is killed by any failure on their part to comply with the statute law of the State, and it is their carelessness and negligence that causes the death, and the party who is killed does not contribute towards his own injury, then the plaintiff would be entitled to recover under such circumstances;’ the error herein being, that the failure to give the signals, is negligence
per se,
and it was error not to so charge;'the plaintiff could recover unless Mercer was guilty of gross and wilful negligence, and it was error to otherwise instruct the jury.
“2d. That he erred when he did not charge plaintiff’s sixth request, without qualification, which was as follows: ‘If the jury believes from the testimony that the signals were not
given as required by statute, and that Mercer was killed upon the crossing, then they must find for the plaintiff, Mrs. Mercer, the mother, unless it is shown .by the testimony that Jim Mercer, at the time of .the killing, was guilty of gross or wilful negligence;’ and he erred when he qualified said request as follows: T charge you that she would be entitled to recover, unless you are satisfied that he, by his own carelessness and negligence, contributed to his own injury, and that was the direct and proximate cause of the injury.’
“3d. That he erred when he charged the jury, ‘Or, if the railroad was careless and negligent, and if the party killed was also careless and negligent, and if the admixture of the carelessness of the two brought about the injury, then the railroad is not liable;’ whereas, it is submitted, as it was alleged that Mercer was killed at a public crossing on a dark night, and that no signals were given or head-light upon the engine burning, that if these allegations were established as true, and this was a question for the jury, then plaintiff must recover, unless the deceased was guilty of gross and wilful negligence, and that such gross and wilful negligence was the proximate cause of the injury.
“4th. That he erred when he charged the jury: ‘or, if the railroad was careless and negligent, and he was careless and negligent, and the carelessness and negligence of the two was the proximate or near cause of his injury, your verdict should be for the railroad;’ whereas, it is submitted, he should have charged the jury, that whoever’s negligence— that of the deceased or defendant — was the proximate cause of the injury, against that one the verdict should have been rendered.
“5th. That he erred when he charged defendant’s sixth request: ‘If the jury find that the place in question was a public road crossing or traveled place, within the meaning of the statute, they must still find for the defendant, if they are satisfied that James Mercer was guilty of gross negligence and such negligence as contributed to his injury whereas, it is submitted, that if Mercer was killed at a crossing by de
fendant, and no signals were given, that the verdict must be for the plaintiff, unless Mercer was guilty of gross or wilful negligence, and this negligence was the proximate cause of the injury, and it was error to say to the jury, ‘guilty of gross negligence, and such negligence as contributed to the injury.’
“7th. That he erred when he did not instruct the jury plainly, that if Mercer was killed upon a public crossing, on defendant’s track, by one of its engines, and the testimony showed that the defendant did not give the signals as required by statute (which.was negligence
per se),
and did not exercise due care, then plaintiff was entitled to recover, unless Mercer was guilty of gross or wilful negligence, and this was the proximate cause of the injury.
“8th. That he erred when he instructed the jury, at request of defendant in 16th request, as follows: ‘And if the intoxication actually contributed to the injury, the plaintiff cannot recover, the principle being that a person cannot voluntarily incapacitate himself from the ability to exercise ordinary care, and then recover for an injury to which a want of ordinary care on his part, while so intoxicated, proximately contributes.’ If Mercer was killed at a public crossing, no signals being given, he must be guilty of gross and wilful negligence to defeat the action and not ‘want of ordinary care.’ ”
We will now briefly pass upon these exceptions. We will first observe that the sixth is conspicuously absent from the “Case” for appeal. Before taking up the other exceptions, it may be said: “Instructions to a jury must be based upon and be applicable to the pleadings and
evidence”
(italics ours). 11 Ency. Pleading and Practice, pp. 158 and 159. In the “Case” there is not a particle of testimony printed. How can we tell whether the charge of the trial Judge is responsive to the pleadings and evidence, when the latter is not printed in the “Case.” We might, and possibly should, decline to go further, but under the circumstances will not apply so stern a rule.
1.
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The opinion of the Court was delivered by
Mr. Chief Justice Pope.
This appeal involves questions as to the correctness of the charge of the Hon. Richard C. Watts, as presiding Judge, to the jury on the trial before them. The cause of action is the alleged negligence of the defendant in failing to comply with the requirements of the statute law as to ringing the bell or blowing the whistle of the engine, beginning at a distance of 500 yards of a crossing by said railway over a pubblic highway, and continuing to ring the bell or sound the whistle until after such highway
had been passed by such engine, and also the neglect to have the headlight on the engine kept burning at that time, whereby, it being a dark and windy night, the plaintiff came in collision with said engine and was instantly killed, to the plaintiffs damage $1,950. The defendant denied all these allegations of fact, and also alleged that the death of the plaintiff, if he was killed by the railway train, was not owing to any fault or negligence of the defendant, but was due to the fault and negligence of plaintiff’s intestate; that the intestate was guilty of contributory negligence, without which he would not have been killed; that the accident was the result of intestate’s gross negligence. Testimony was offered by both sides. Judge Watts charged the jury. Verdict was for defendant. After judgment, plaintiff appealed on the following grounds:
“1st. For that it is respectfully submitted, his Honor, the Circuit Judge, erred at the trial, in this: Plaintiff requested his Honor to instruct the jury as follows: ‘It is negligence
per se
(of itself) for a railroad to fail to give the signals at crossings, as required by statute;’ and he erred when he modified said request as follows: T charge you that, but don’t charge you that in that language. I charge you as a matter of law that wherever the railroad fails to give those signals at crossings, as required by statute, it violates the statute law of the State; and if a man is killed by any failure on their part to comply with the statute law of the State, and it is their carelessness and negligence that causes the death, and the party who is killed does not contribute towards his own injury, then the plaintiff would be entitled to recover under such circumstances;’ the error herein being, that the failure to give the signals, is negligence
per se,
and it was error not to so charge;'the plaintiff could recover unless Mercer was guilty of gross and wilful negligence, and it was error to otherwise instruct the jury.
“2d. That he erred when he did not charge plaintiff’s sixth request, without qualification, which was as follows: ‘If the jury believes from the testimony that the signals were not
given as required by statute, and that Mercer was killed upon the crossing, then they must find for the plaintiff, Mrs. Mercer, the mother, unless it is shown .by the testimony that Jim Mercer, at the time of .the killing, was guilty of gross or wilful negligence;’ and he erred when he qualified said request as follows: T charge you that she would be entitled to recover, unless you are satisfied that he, by his own carelessness and negligence, contributed to his own injury, and that was the direct and proximate cause of the injury.’
“3d. That he erred when he charged the jury, ‘Or, if the railroad was careless and negligent, and if the party killed was also careless and negligent, and if the admixture of the carelessness of the two brought about the injury, then the railroad is not liable;’ whereas, it is submitted, as it was alleged that Mercer was killed at a public crossing on a dark night, and that no signals were given or head-light upon the engine burning, that if these allegations were established as true, and this was a question for the jury, then plaintiff must recover, unless the deceased was guilty of gross and wilful negligence, and that such gross and wilful negligence was the proximate cause of the injury.
“4th. That he erred when he charged the jury: ‘or, if the railroad was careless and negligent, and he was careless and negligent, and the carelessness and negligence of the two was the proximate or near cause of his injury, your verdict should be for the railroad;’ whereas, it is submitted, he should have charged the jury, that whoever’s negligence— that of the deceased or defendant — was the proximate cause of the injury, against that one the verdict should have been rendered.
“5th. That he erred when he charged defendant’s sixth request: ‘If the jury find that the place in question was a public road crossing or traveled place, within the meaning of the statute, they must still find for the defendant, if they are satisfied that James Mercer was guilty of gross negligence and such negligence as contributed to his injury whereas, it is submitted, that if Mercer was killed at a crossing by de
fendant, and no signals were given, that the verdict must be for the plaintiff, unless Mercer was guilty of gross or wilful negligence, and this negligence was the proximate cause of the injury, and it was error to say to the jury, ‘guilty of gross negligence, and such negligence as contributed to the injury.’
“7th. That he erred when he did not instruct the jury plainly, that if Mercer was killed upon a public crossing, on defendant’s track, by one of its engines, and the testimony showed that the defendant did not give the signals as required by statute (which.was negligence
per se),
and did not exercise due care, then plaintiff was entitled to recover, unless Mercer was guilty of gross or wilful negligence, and this was the proximate cause of the injury.
“8th. That he erred when he instructed the jury, at request of defendant in 16th request, as follows: ‘And if the intoxication actually contributed to the injury, the plaintiff cannot recover, the principle being that a person cannot voluntarily incapacitate himself from the ability to exercise ordinary care, and then recover for an injury to which a want of ordinary care on his part, while so intoxicated, proximately contributes.’ If Mercer was killed at a public crossing, no signals being given, he must be guilty of gross and wilful negligence to defeat the action and not ‘want of ordinary care.’ ”
We will now briefly pass upon these exceptions. We will first observe that the sixth is conspicuously absent from the “Case” for appeal. Before taking up the other exceptions, it may be said: “Instructions to a jury must be based upon and be applicable to the pleadings and
evidence”
(italics ours). 11 Ency. Pleading and Practice, pp. 158 and 159. In the “Case” there is not a particle of testimony printed. How can we tell whether the charge of the trial Judge is responsive to the pleadings and evidence, when the latter is not printed in the “Case.” We might, and possibly should, decline to go further, but under the circumstances will not apply so stern a rule.
1. Sections 2132 and 2139 of the Civil Code of South Carolina, relating as they do to the equipment of railway engines with bell and whistle and headlight, and the duty of the one in charge of the engine to ring the bell or blow the whistle within 500 yards of a crossing of a highway, street or traveled place, as does section 2132, and also that any collision by a person or property with such engine of the railway on a crossing by it over a highway, street or traveled place, in the absence of the foregoing signals by the railway company, in the absence of proof that such failure of the railway company did not contribute to the injury, the railway shall be liable for all damages by the collision,
unless it is shown
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 law, and that such gross or wilful negligence or unlawful act contributed to the injury as provided in sec. 2139, have so often been before this Court, that it is hardly necessary to do more than to merely cite the
numbers
of such sections when injuries at railroad crossings of a highway, street or traveled place are up for consideration. When the Circuit Judge considered in his charge the fourth request of plaintiff, he did not refuse to so charge; he used this language: “I charge you that, but I don’t charge you that in that language,” he went on and in a common sense way, without quoting any Latin, and explained to the jury what was meant by the request. His work was admirably done. There was no ambiguity in his language. No one could fail to understand what his language meant. This exception is overruled.
2. We overrule the second exception. There was no mistake of the Judge, as shown by the exception itself. The Circuit Judge in his charge had to repeat the matter here involved several times, and in no instance did his language fail to convey the proper idea of what was meant by those statutory provisions. If he erred at all at this point, it was in favor of the plaintiff.
3. The Circuit Judge was endeavoring to impress upon the minds of the jurors the effect in law produced when the plaintiff and defendant concur in contributing to the disaster to plaintiff’s intestate; trying to show to the jury that if the railway did not ring the bell or blow the whistle in 500 yards of the crossing in question, and yet the defendant, in addition to the want of ordinary care by being guilty of gross or wilful negligence, contributed to his injury, then in law the verdict should be for the defendant. We see no error here; it is a compliance with the statute itself. This exception must be overruled.
4. This exception is controlled by our preceding holdings, and is, therefore, overruled.
5. The language of the statute in question was embodied in his own language by the trial Judge. This exception is overruled.
6. We find that the trial Judge in his charge to the jury was very careful to, and very successful in conveying to, the jury the meaning of our statute regulating such cases as the present. This ground of appeal is overruled.
8. We find that the language of the charge as here complained of was in accordance with law. This exception is overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
Mr. Justice Gary
concurs
in the result, as neither the testimony nor a statement thereof is set out in the record.