Altee v. South Carolina Railway Co.

The opinion of the court was deliverd by

The respondent, while in the employment of the South Carolina Railway Company as brakeman, received the injury complained of, and for which the action below was brought. His proper place as brakeman was on top of the cars, and while standing erect on a box car, as it passed over the Congaree bridge on the morning of November 7, 1882, the overhead structure being too low for him thus to stand erect, he was struck by the timbers thereof aud severely injured.

At the close of the plaintiff’s testimony, a motion was made for non-suit on various grounds, which was refused, and at the close of the testimony on both sides, a motion was made by the defendant, that the court instruct the jury to find a verdict for the defendant on several grounds, which was also refused. The case then went to the jury, under the charge of the judge, the defendant having submitted fourteen requests, all of which were granted, except the latter part of the first. The jury found a verdict for the plaintiff for $5,000.

The defendant moved for a new trial, which being refused, the defendant has appealed upon the following five exceptions: “1. *555Because the Circuit judge erred in admitting testimony of plaintiff Altee as to the inefficiency of his fellow-brakemen, and as to the train being behind its schedule time. 2. Because the Circuit judge erred in refusing to grant the motion for non-suit on grounds submitted at the trial. 3. Because the Circuit judge erred in refusing to instruct the jury to find a verdict for the defendant on grounds submitted at the trial. 4. Because the Circuit judge erred in refusing to grant a new trial on grounds submitted at trial. 5. Because the Circuit judge, in determining the motion for a new trial, did not exercise his discretion in weighing the testimony as required by law.”

The questions of law raised in the appeal are: First, should the testimony of Altee (the plaintiff), referred to, have been excluded ? Second, should a non-suit have been granted ? Third, should the judge have directed a verdict for the defendant ? and Fourth, should a new trial have been ordered ?

The complaint alleged negligence to the defendant under two specifications: 1st. For carelessness and negligence in the employment of unfit and incompetent servants to serve as brakemen with the plaintiff, the incompetency and unfitness of said brakemen being known to the defendant, and in consequence of whose unfitness the plaintiff was exposed to more than ordinary risk and danger, from which his injury resulted. 2nd. For negligence in requiring him to discharge a duty on top of the box cars, which had to pass the Congaree bridge, a structure too low for him to stand erect on said cars in safety while passing, a fact which though known to the defendant was yet never communicated to the plaintiff, and of which he was entirely ignorant.

1st. The plaintiff was the first witness examined, and after a few questions propounded he was asked, “What sort of hands were Herron and Kinsman ?” To this question the defendant objected, on the ground that any testimony as to the character of the employés of the company, or any other matter, unless it could be shown that their alleged inefficiency, or other matter, was one of the proximate causes of the injury, was incompetent. This objection was overruled, and this is the foundation of the first exception above. It appears to us that this objection was entirely premature, and was properly overruled at the time it was *556made. One of the allegations in the complaint involved a charge of negligence in the employment of co-laborers with the. plaintiff, and it was certainly pertinent to that issue to prove the “sort” of hands employed. The Circuit judge could not at this early stage of the case anticipate the future testimony, or a failure on the part of the plaintiff to follow up the testimony given, with evidence that these hands through their unfitness had caused the injury. In fact, the objection itself, or rather the ground of the objection, implies that such testimony would be competent in the event that the inefficiency of these servants constituted one of the proximate causes of the injury. It is true that in the progress of the case it was ascertained that this charge of negligence could not be sustained, and the case ultimately turned upon the second specification, as appears from the charge of the judge, the requests made to charge, and the grounds upon which the motion for- a new trial was based. But at the time this testimony was introduced, it seems to us that it was pertinent and competent, and therefore there was no error in admitting it.

2nd. As to the non-suit. “A non-suit is proper only where there is a total failure of testimony by the plaintiff, as to his whole case, or to some material and essential part thereof.” Carrier & Harris v. Dorrance, 19 S. C., 32, and the cases there cited. Now, here the negligence charged to the defendant was the fact that the plaintiff had been placed in a position where he was exposed to a danger of which he knew nothing, and of which he was not informed by the defendant, or furnished with any means or guards to warn him of its presence, although said danger was known to the defendant when the plaintiff was employed and placed in said position. Was there a total failure of testimony as to either of these allegations? We think not. On the contrary, the slightest examination of the evidence as reported will show that there wTas evidence as to all of them. There was evidence as to the place of the plaintiff as brakeman. There was evidence as to the fact that the Congaree bridge was too low to allow one to stand erect on the top of a car in safety as it passed said bridge. There was evidence as to the fact that the defendant knew the height of the bridge and the danger of plaintiff’s position. And there was evidence that plaintiff was uninformed *557as to this clanger; certainly that the defendant had given him no information on the subject. These were the material allegations in the complaint, and we do not see how the Circuit judge could have granted a non-suit in the face of the testimony without invading the province of the jury as to the facts.

The case before the court is a very different case from Davis v. Columbia and Greenville Railroad Company (ante, page 93), recently heard and decided by this court, in the character of the negligence alleged and of the testimony introduced. There the negligence complained of was a failure on the part of the company to furnish the brakeman with safe lanterns while in the discharge of his duty, and in negligently erecting a tank too close to the track. The plaintiff was non-suited by the Circuit judge because in his opinion the plaintiff failed entirely to introduce any testimony bearing upon the negligence alleged, and this court affirmed the judgment of the Circuit Court. Here, however, the negligence is of a different character. It consisted in exposing the plaintiff to a danger known to the defendant, but unknown to the plaintiff, and without any information or tvarning to him of the presence of such danger. This was the allegation in the complaint. It was the gist of the action, and the question before the court on the motion for non-suit was, is there any testimony as to these facts ? The Circuit judge found that there ivas; he therefore refused the non-suit, and we think it was properly refused.

3d. Was it error on the part of the Circuit judge to refuse to instruct the jury to find a verdict for the defendant ? We do not know any class of cases where a Circuit judge would be warranted in directing a verdict for the defendant, except where there has been a total failure of evidence as to any or all of the essential allegations in the complaint, or where, admitting the facts alleged, yet they do not constitute a cause of action; in other words, in cases where either a non-suit for total absence of testimony would be proper, or where a demurrer for the want of a cause of action would be sustained. Should a clear case, in either of these categories, by some strange accident or oversight reach the jury, we see no reason why the Circuit judge should not direct a verdict for the defendant as matter of law.

*558The case before the court does not fall under either of these classes. It will not do to say that because a Circuit judge under our system is invested with power to grant new trials, that it follows he is also invested with power to direct a verdict in cases where, if the verdict should be in one way, he would feel compelled to grant a new trial. The power to grant a new trial is very different from that of directing a verdict. A verdict concludes the parties as to the facts of the case; whereas a new trial merely places them back as they stood originally, with the right of further investigation and the opportunity of having any errors corrected by a second trial. A verdict settles the facts, and is final; a new trial reopens the issue without prejudice. The first belongs to the jury; the second is under the control of the court.

4th. Was there error in refusing the motion for a new trial ? It must be remembered that this court in cases at law has jurisdiction only as to the questions of law involved. It has no jurisdiction as to the facts, and its power on appeal extends in such cases only to the errors of law assigned. So that, in order to sustain an appeal in such cases, some error of law must be presented and shotvn to have been committed beloAV. What error of law did the presiding judge commit here in refusing the motion for a new trial ? Formerly, before the adoption of the constitution of 1868, the power to grant new trials belonged to the Appeal Court; since the adoption of the constitution, however, the Supreme Court organized thereunder has been denied the power of hearing such motions as an original proceeding, but this power has been conferred by act upon the Circuit Courts, to be exercised by such courts “in all cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the coiu-ts of the United States.” This power has been invoked in the Circuit Courts most usually upon the facts ; as,, for instance, where the preponderance of the testimony has been the one way or the other, for excessive damages, and the like. In such cases, the judgment of the Circuit Court is final, and it cannot be reviewed here, because no question but one of fact is involved. Brickman v. S. C. Railroad Company, 8 S. C., 173; Steele v. C., C. & A. R. R. Co., 11 Id., 591.

Where the court below, however, declines to exercise this *559power, on the ground that it has not been invested with it, his refusal is appealable, and his judgment may be reviewed, because here would be a question of law, to wit, the existence of the power. State v. David, 14 S. C., 428, and Wood v. Atlanta and Charlotte R. R. Co., 19 Id., 582. And also where the jury refuses to take the law from the court and finds a verdict in direct conflict with the charge of the judge as to some legal proposition laid down governing the case; for the same reason as above, a refusal of a new trial in such a case would be subject to review by this court. Dent v. Bryce, 16 S. C., 1. The ease before the court does not involve either of these questions.

Nor does it, as far as we can see, present any error of law connected with the refusal of the new trial. The Circuit judge, after rendering an oral decision upon this motion, filed a written opinion therein, giving his reasons fully for the refusal. There being no controversy as to the law of the case as laid down by the judge, and all the requests to charge having been in the main granted, there was nothing left but the facts, and the jury having found these in favor of the plaintiff, the judge did not feel at liberty to arrest the verdict; and involving, as the motion did, questions of fact only, or at least substantially, its refusal is unappealable.

No exception having been taken to the charge of the judge, nor any error assigned because of omission on his part to charge defendant’s requests, the case here has been free from those important questions of negligence, contributory or otherwise, usually introduced in such cases. We have, therefore, not found it necessary to discuss such questions. On the contrary, the appeal having been based mainly upon the refusal of the non-suit, the refusal to direct the verdict and to order a new trial, and therefore involving only questions of law governing such motions, we have confined ourselves to the questions thus involved, and finding no legal principles applicable to such motions violated in the judgment below,

It is the judgment of this court that the judgment of the Circuit Court be affirmed.