Sharpton v. Augusta & Aiken Ry.

concurring. While I do not think contributory negligence was properly pleaded in the answer according to the rule laid down in Charping v. Toxaway Mills, 70 S. C., 470, I concur in reversing the judgment because the evidence as to the intoxication of the plaintiff " at *175 the time of the accident was admissible in support of the plea that the accident was due entirely to his own negligence; and also as tending to prove lack of accuracy in the statement of the plaintiff as to the circumstances under which he was injured.

The opinion of the Court was delivered by

The allegations of the complaint that are material in considering the questions presented by the exceptions are as follows: “That on the evening of the 13th of April, 1903, the plaintiff being at Bath, and desiring to go to Bangley, as a passenger on the said railway and its cars, approached one of its regular stopping places near a public crossing; that is to say, a public place traveled by the public and a public crossing, being known as Nellom’s Crossing, and that, arriving at said station where the cars of said railway were accustomed to stop to take on passengers, and no car having arrived, he walked up and down the railway track waiting for said car, and when very near said traveled place or public crossing and very near said station, the said public crossing and traveled place and said station being near to each other, a car of said railway company approached this plaintiff, who was unaware of its coming, * * * and negligently, wilfully and wantonly, without any warning to this plaintiff, was rushed upon this plaintiff as he traveled along and near said track for the purpose of going to said station.”

The defendant denied the allegations of the complaint except its corporate existence, and set up the following plea: “For a further defense, defendant alleges that plaintiff was negligent in going upon defendant’s right of way, not at a station, and in remaining there, and such negligence contributed as a proximate cause to his injury, if any, without which the injury would not have occurred.”

The jury rendered a verdict in favor of the plaintiff for $300.

The defendant appealed upon exceptions which will be set out in the report of the case.

*172 1 First, second, fourth c,nd :fifteenth exceptions: These exceptions will be considered together. While the plaintiff was on the stand as a witness, he was asked, on cross-examination by defendant’s counsel, the question: “Were you under the influence of liquor at the time you were hit by the car ?” Also, the question: “Did you not say to Dr. Shaw at the same time in that conversation that you were drunk?” His Honor, the presiding Judge, ruled that both questions were incompetent. The defendant also offered to introduce -the testimony of several witnesses to prove that the plaintiff was intoxicated at the time of the injury, but the presiding Judge ruled that the testimony was inadmissible. The defense set up in the answer not only alleged the facts constituting negligence on the part of the plaintiff, but that they contributed as a proximate cause to his injury. One of the definitions of the word contribute in Webster’s Inter. Die. is: “To furnish or supply in part;” and as defined in 9 Cyc., it is, to “furnish as a share or constituent part of anything.” These definitions show that the defendant intended to allege that the negligence of the plaintiff was a constituent element in causing the injury.

The case of Charping v. Toxaway Mills, 70 S. C., 470, shows that these allegations are sufficient to constitute the defense of contributory negligence. When the defendant alleged contributory negligence on the part of the plaintiff in going upon its right of way, it was not necessary to allege the probative facts relied upon to show such negligence. Evidence of intoxication is competent in determining the question of contributory negligence. Hankinson v. R. R., 41 S. C., 1, 19 S. E., 206.

But even if contributory negligence had not been set up as a defense, evidence of intoxication would have been admissible. Under a general denial a defendant can introduce testimony for the purpose of showing that the injury was caused by the negligence of the plaintiff, as this negatives the allegation of negligence by the defendant. Ken *173 nedy v. R. R., 59 S. C., 535, 38 S.E., 169. One laboring under intoxication is not likely to exercise the same degree of care as an ordinary person, and, therefore, the fact of intoxication should be considered by the jury in determining the question of the plaintiff’s negligence. 40 L. R. A., 143 (note). Furthermore, the testimony was competent as tending to impair the credibility of the witness, for the reason that persons suffering from intoxication cannot reasonably be expected to give as accurate a statement of the surroundings as those whose intellects are free from such influence. State v. Rhodes, 44 S. C., 325, 21 S. E., 807; Bedenbaugh v. Ry., 69 S. C., 1; 30 Enc. of Law, 936; 2 Elliott on Ev., sec. 765. The Circuit Judge, therefore, erred in excluding the testimony.

2 Bighth exception: The defendant requested the presiding Judge to charge that “voluntary intoxication will not excuse a traveler for failure to exercise ordinary care at a crossing.” The request was properly refused, on the ground that it was inapplicable to the case.

3 Third exception: The witness testified that he did not write the letter; that he could not write, and did not authorize any one to write it for him. The presiding Judge ruled correctly that the letter could not be introduced in evidence until it was authenticated.

4 Fifth exception: It was discretionary with the presiding Judge whether he would allow the witness to testify under the circumstances, and this Court is not satisfied that there was an abuse of discretion.

The sixth exception was abandoned.

5 Seventh exception: If the Circuit Judge erred in stating the issues raised by the pleadings, it was incumbent on the appellant to call his attention to such error, otherwise it cannot be made the basis of an exception.

*174 6 *173 Ninth exception: The defendant requested the Circuit Judge to charge as follows: “The acquiescence by a railroad *174 company in the use of its right of way by pedestrians does not amount to a license to use such right of way.” He said: “That is the law. It does not amount to a license. This principle I read to you applies to that.” He then charged as set out in the exception. It does not necessarily follow that it is reversible error to charge a proposition of law when there are no facts in the particular case to which it is applicable. Boggero v. Ry., 64 S. C., 104, 41 S. E., 819. In order to constitute reversible error, the Court must be satisfied that there are reasonable grounds for supposing that the jury may have been misled to the prejudice of the appellant. The Court is not satisfied that such grounds exist in this case.

Tenth, eleventh and thirteenth exceptions: The appellant does not contend that the principles stated by the presiding Judge were erroneous, but that they were inapplicable to the facts of this case. These exceptions are disposed of by what was said in considering the ninth exception.

7 Tzvelfth exception: His Honor charged the request, and if he afterwards charged the law erroneously, that should have been made the basis for an assignment of error.

8 Fourteenth exception: The exception contains only a portion of the charge relating to the question therein stated. When the charge in question is considered in connection with the other portions thereof, it will be found that it is free from the error assigned.

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