The opinion of the court was delivered by
Mr. Chiee Justice Simpson.
The plaintiff, respondent, .brought the action below to recover the value of certain mules alleged by him to have been negligently killed by defendant’s train of cars. The jury found a verdict for the plaintiff for $425, and the defendant gave notice of a motion for a new trial on the judge’s minutes. The court, however, adjourned without hearing this motion, and the appellant’s attorney, supposing that he had an oral agreement with the attorney on the other side that said motion should be heard after the adjournment, sent his argument forward. It turned out, however, that there was a misunderstanding as to the agreement,1 and his honor, Judge Norton, [514]*514declined to hear the motion on jurisdictional grounds, holding that he had no jurisdiction to hear a motion for a new trial at chambers, and after the court had adjourned. This was on the 10th of December, 1888. On the 4th of December, 1888, respondent had entered judgment on the verdict, but gave no notice thereof to appellants.
On the 14th December, 1888, appellant having been informed of the entry of the judgment on the 4th, gave notice of intent to appeal, by mailing the same to respondent’s attorney, postage paid. This was a notice of appeal from the judgment entered on the 4th, and also from the refusal of his honor to hear the motion for a new trial on the 10th of December. These notices were received through the mail by respondent’s attorney on the 16th of December, 1888. It should have been stated above, that the rising of the court at which the case was tried, took place on the 29th of November, 1888, fifteen days before the notice of appeal was deposited in the post office. In the meantime, however, before the regular notice of intent to appeal, and within the ten days from the rising of the court, appellant’s attorney, in a letter to respondent’s attorney, stated that as soon as he was notified of the entry of judgment, he would appeal if his motion for a new trial failed. The exceptions of appellant will be found below.
But before the appeal was heard upon the merits, &c., the respondent moved to dismiss the appeal, on the ground that the notice of intent to appeal had not been served within ten days from the rising of the court at which the case was tried. This is the first question for our consideration. There is no doubt as to the facts in reference to this notice of intent. The court, as stated above, rose on the 29th of November, 1888, and the notice was deposited in the office at Beaufort on the 14th of December, fifteen days after the rising of the court. So that, if ten days is the limit from the rising of the court, the appeal must be dismissed, as there is no cure for a failure to comply with the law, in the matter of such a notice.
What is the law upon that subject under the old code, and before the act of 1878? Appeals to this court, under subdivision two, of section eleven, were required to be taken within sixty days after written notice of the order appealed from, and every [515]*515other appeal allowed by chapter second of that title, within three months after the judgment appealed from was perfected by filing the judgment roll. Old Code, section 357. And the notice had to be given in writing. § 353. The act of 1878, however, made a change by providing, in its second section, that in every appeal from an order, decree, or judgment, or other matter, the appellant should give notice of his intent to appeal within ten days after written notice that such order, decree, or judgment had been granted or rendered at chambers; or, if granted or rendered during term time, within ten days after the rising of the court.
While this act was of foree, the case of Bank v. Gary (14 S. C., 571) was heard by this court, in which was involved a motion to dismiss the appeal for want of the legal notice of intent to appeal, as alleged. In that case, which was a jury case, a verbal notice of appeal, upon the rendition of the verdict and before judgment was entered up, was given; afterwards the judgment was entered, and within ten days after notice of such entry, the appellant gave written notice of appeal. Under this state of facts, the court held, that inasmuch as the act of 1878 did not require that a w'ritten notice of intent should be given, the verbal notice, which was within the ten days from the rising of the court, was sufficient. It also held that there could be no appeal from a verdict merely; that there must be a judgment, and the notice having been given within ten days after the entry of judgment, it was sufficient.
It will be observed that the act of 1878 covered all appeals, whether in cases of law or in chancery, the language being, “that in every appeal from an order, decree, or judgment,” &c., the difference as to the time of the notice depending upon the fact whether said order, decree, or judgment was granted or rendered at chambers or in term time — in the first within ten days after written notice of the granting, &c., and in the second within ten days from rising of the court. In section 345 of the Code, found in General Statutes of 1882, a second act was passed upon this subject — the act now of force. In that section, the 2nd subdivision provides that in every appeal to the Supreme Court from an order, decree, or judgment, or other matter not tried before a [516]*516jury, then the notice shall be as stated above in the act of 1878. See Code, in General Statutes, section 345, 2nd subdiv.
The act of 1878 embraced, as we have said, all appeals, whether in cases at law or chancery, whether tried before a jury or not; while section 345 of the Code, supra, confined its action to cases not tried before a jury. Now, we can hardly suppose that it was the intent of section 345 of the Code, supra, to repeal the entire act of 1878, leaving appeals from jury cases unprovided for. •We think that the act of 1878, as to cases tried before a jury, is hot expressly repealed, nor is it inconsistent with section 345. These two acts must be construed together, and when so construed, we think it follows, that in every appeal, whether in a case at law or a case in chancery, where the order, decree, or judgment is rendered in term time, the notice must be given within ten days after the rising of the court, and, as now provided, such notice must be in writing;' and in orders, decrees, or judgments rendered at chambers, within ten days after written notice of the granting, &c., of such orders, decrees, or judgments.
The difficulty, however, in the case before us is not relieved yet. Here, the judgment appealed from was not rendered at chambers, nor during term time. It was a jury case, and although the verdict was obtained in term time, the judgment was not entered until some time after the rising of the court. And it is contended, that inasmuch as there can be no appeal from a verdict (Bank v. Gary), but only from a judgment, and as the notice here was within ten days from the entry of the judgment, said notice should be held sufficient. This is a new question, and is not free from difficulty. It certainly is not covered by the language used in either the act of 1878 or 1880.
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The opinion of the court was delivered by
Mr. Chiee Justice Simpson.
The plaintiff, respondent, .brought the action below to recover the value of certain mules alleged by him to have been negligently killed by defendant’s train of cars. The jury found a verdict for the plaintiff for $425, and the defendant gave notice of a motion for a new trial on the judge’s minutes. The court, however, adjourned without hearing this motion, and the appellant’s attorney, supposing that he had an oral agreement with the attorney on the other side that said motion should be heard after the adjournment, sent his argument forward. It turned out, however, that there was a misunderstanding as to the agreement,1 and his honor, Judge Norton, [514]*514declined to hear the motion on jurisdictional grounds, holding that he had no jurisdiction to hear a motion for a new trial at chambers, and after the court had adjourned. This was on the 10th of December, 1888. On the 4th of December, 1888, respondent had entered judgment on the verdict, but gave no notice thereof to appellants.
On the 14th December, 1888, appellant having been informed of the entry of the judgment on the 4th, gave notice of intent to appeal, by mailing the same to respondent’s attorney, postage paid. This was a notice of appeal from the judgment entered on the 4th, and also from the refusal of his honor to hear the motion for a new trial on the 10th of December. These notices were received through the mail by respondent’s attorney on the 16th of December, 1888. It should have been stated above, that the rising of the court at which the case was tried, took place on the 29th of November, 1888, fifteen days before the notice of appeal was deposited in the post office. In the meantime, however, before the regular notice of intent to appeal, and within the ten days from the rising of the court, appellant’s attorney, in a letter to respondent’s attorney, stated that as soon as he was notified of the entry of judgment, he would appeal if his motion for a new trial failed. The exceptions of appellant will be found below.
But before the appeal was heard upon the merits, &c., the respondent moved to dismiss the appeal, on the ground that the notice of intent to appeal had not been served within ten days from the rising of the court at which the case was tried. This is the first question for our consideration. There is no doubt as to the facts in reference to this notice of intent. The court, as stated above, rose on the 29th of November, 1888, and the notice was deposited in the office at Beaufort on the 14th of December, fifteen days after the rising of the court. So that, if ten days is the limit from the rising of the court, the appeal must be dismissed, as there is no cure for a failure to comply with the law, in the matter of such a notice.
What is the law upon that subject under the old code, and before the act of 1878? Appeals to this court, under subdivision two, of section eleven, were required to be taken within sixty days after written notice of the order appealed from, and every [515]*515other appeal allowed by chapter second of that title, within three months after the judgment appealed from was perfected by filing the judgment roll. Old Code, section 357. And the notice had to be given in writing. § 353. The act of 1878, however, made a change by providing, in its second section, that in every appeal from an order, decree, or judgment, or other matter, the appellant should give notice of his intent to appeal within ten days after written notice that such order, decree, or judgment had been granted or rendered at chambers; or, if granted or rendered during term time, within ten days after the rising of the court.
While this act was of foree, the case of Bank v. Gary (14 S. C., 571) was heard by this court, in which was involved a motion to dismiss the appeal for want of the legal notice of intent to appeal, as alleged. In that case, which was a jury case, a verbal notice of appeal, upon the rendition of the verdict and before judgment was entered up, was given; afterwards the judgment was entered, and within ten days after notice of such entry, the appellant gave written notice of appeal. Under this state of facts, the court held, that inasmuch as the act of 1878 did not require that a w'ritten notice of intent should be given, the verbal notice, which was within the ten days from the rising of the court, was sufficient. It also held that there could be no appeal from a verdict merely; that there must be a judgment, and the notice having been given within ten days after the entry of judgment, it was sufficient.
It will be observed that the act of 1878 covered all appeals, whether in cases of law or in chancery, the language being, “that in every appeal from an order, decree, or judgment,” &c., the difference as to the time of the notice depending upon the fact whether said order, decree, or judgment was granted or rendered at chambers or in term time — in the first within ten days after written notice of the granting, &c., and in the second within ten days from rising of the court. In section 345 of the Code, found in General Statutes of 1882, a second act was passed upon this subject — the act now of force. In that section, the 2nd subdivision provides that in every appeal to the Supreme Court from an order, decree, or judgment, or other matter not tried before a [516]*516jury, then the notice shall be as stated above in the act of 1878. See Code, in General Statutes, section 345, 2nd subdiv.
The act of 1878 embraced, as we have said, all appeals, whether in cases at law or chancery, whether tried before a jury or not; while section 345 of the Code, supra, confined its action to cases not tried before a jury. Now, we can hardly suppose that it was the intent of section 345 of the Code, supra, to repeal the entire act of 1878, leaving appeals from jury cases unprovided for. •We think that the act of 1878, as to cases tried before a jury, is hot expressly repealed, nor is it inconsistent with section 345. These two acts must be construed together, and when so construed, we think it follows, that in every appeal, whether in a case at law or a case in chancery, where the order, decree, or judgment is rendered in term time, the notice must be given within ten days after the rising of the court, and, as now provided, such notice must be in writing;' and in orders, decrees, or judgments rendered at chambers, within ten days after written notice of the granting, &c., of such orders, decrees, or judgments.
The difficulty, however, in the case before us is not relieved yet. Here, the judgment appealed from was not rendered at chambers, nor during term time. It was a jury case, and although the verdict was obtained in term time, the judgment was not entered until some time after the rising of the court. And it is contended, that inasmuch as there can be no appeal from a verdict (Bank v. Gary), but only from a judgment, and as the notice here was within ten days from the entry of the judgment, said notice should be held sufficient. This is a new question, and is not free from difficulty. It certainly is not covered by the language used in either the act of 1878 or 1880. In both of these acts, the terms employed are “granted or rendered during term time.” It may be, that, after verdict, the judgment is to be regarded for some purposes-as rendered thereon at once, but in the matter of appeal, it must be filed and entered before the appeal is taken; otherwise, inasmuch as other steps are to be taken within certain prescribed time after the notice, the appeal might be perfected without any judgment at all having been entered. This would be in conflict with the law allowing appeals, which confines them to orders,, decrees, and judgments. We think there [517]*517is a casus omissus here, and in the absence of any act distinctly prescribing the time in such cases, and in favor of the right of appeal, we must hold the notice given as sufficient, especially as. it was given within ten days after notice of the entry of the judgment appealed from. Bank v. Gary, supra.
As to the refusal of his honor to hear the motion for a new trial after the adjournment of the court, we think his honor was entirely correct. The code expressly provides that this is one of the motions that cannot be heard at chambers:- Besides, express .provi-, sion is made.for hearing such paotions on.the minutes of the court, and also upon a case stated for the next-court.. . Code, sec. 287.
This brings us to the appeal on its merits. It is founded upon six exceptions, which will be found in the “Case.” The first four raise substantially the same question. It appears, or at least it seems to have been contended on the part of the defendant, that the train was running at the rate of 18 miles an hour under regulation of the company, and this was relied on in part as a defence; and it is alleged that his honor charged that whether this would be a good defence, would depend upon the fact, whether this was a reasonable regulation or not; and that if it was not reasonable, the verdict should be for the plaintiff, although the jury might believe that neither the regulation nor the operation thereof was the cause of the injury complained of. Upon reading the charge as a whole, we do not think it is subject to the constructibn put upon it by appellant as presented in these exceptions. It must be remembered, that plaintiff having proved the killing, a presumption of negligence attached at once, which it was incumbent on the defendant to remove. In other words, the plaintiff having made out a prima facie case of negligence, under Banner s Case (4 Rich., 329) and the cases subsequent to that case, he was entitled to a verdict, unless this prima facie negligence had been overthrown.
It was to this state of facts that the portion of the charge objected to was addressed, and his honor did not charge, even in general terms, that if the regulation of the company was unreasonable, or if it was not carried out, the company would be liable, even though the jury might not be satisfied that this caused the [518]*518injury. But a prima facie case of negligence having already been made out, the question was upon' its removal, and his honor charged (or at least such is the true intent of the charge, as we understand it), that in so far as said regulation would have effect, it would depend upon the fact, whether said regulation was a reasonable one, and whether it had been carried out as reasonable and prudent persons should carry it out. Thus understood (and we think this is what his honor meant), the plaintiff had greater cause of complaint than the defendant, for the reason that the charge, when thus understood, limited the matter of negligence to the question, whether the regulation of the company was reasonable or unreasonable, and whether, if reasonable, it bad been prudently carried out; whereas the plaintiff had made out a prima facie case of negligence, not based solely on the fact that the regulations of the company were unreasonable, or, if reasonable, that they had not been properly carried out, or that the failure to observe the,regulations, whether reasonable or unreasonable, was the cause of the injury, but based upon negligence presumed by law from the killing.
This negligence in such cases might result from various causes. His honor’s charge, however, excluded them all, except the reasonableness or unreasonableness of the rule of the company as to the speed of the train, and if reasonable, whether it had been prudently carried out. We do not understand that his honor instructed the jury, that if, in their opinion, the regulation was unreasonable, or if reasonable and not prudently carried out, that they could assume that to be the negligent cause of the injury. But he meant that negligence having already been presumptively proved, that whether the regulation could overthrow this presumption, would depend upon whether such regulation was reasonable, and, if so, whether it had been prudently enforced.
If the negligence relied on by the plaintiff had been based entirely upon faulty regulations of the company, or upon a failure to enforce prudently reasonable regulations, then his honor’s charge would have been fair to both sides; but when the plaintiff relied on negligence in the killing, growing out of any and all causes that could show negligence, we do not think the defendant has cause to complain that his honor should have limited the [519]*519question, as be did. His honor went further, and charged that if the regulation was a reasonable one, and was being carried out in the same way as a reasonable and prudent man would have taken the train, in order to prevent an accident, then the verdict should be for the defendant. Certainly the defendant could not complain of this, nor do we think of the converse of this, to wit, if the rule was not reasonable, or if it was not carried out as a prudent man should have carried it out, then the verdict should be for the plaintiff, thus giving the defendant the advantage of having the whole case to turn upon the rule, and whether it had been prudently enforced.
We do not think the charge is obnoxious to the 5th exception, as will be seen from what has been said above.
The 6th and last exception alleges error, because his honor refused to charge as requested, to wit, much less care is required of the railroad company in providing against stock on its track, since the passage of the stock law, than before its passage. It is stated that at the beginning of the argument by appellant’s counsel, he read the syllabus of Joyner s Case from the book (26 S. C.), and handed it to the judge with an oral request to charge. His honor, in settling the case, states that this not being a formal request to charge, and the undisputed legal proposition having been fully stated in the hearing of the jury, it seemed to the judge only necessary to call the attention of the jury to the stock law, and their duty to consider it in connection with the question of negligence, which was done. This is very different from the recent case of Harley v. Eutawville R. R. Co., ante, 151, where the judge unqualifiedly refused to charge a similar request. We think that appellant, if not satisfied, should have made a more formal and distinct request, and at the proper time and in the usual way.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.