Settlemeyer v. Southern Railway

The opinion of the Court was delivered by

1 The record is too voluminous; there are one hundred pages of testimony; little of it relevant to the issues made by the exceptions; four-fifths of it might have been omitted, to the advantage of everybody, but especially to the litigants.

The plaintiff got a verdict against the defendant for twenty-five hundred ($3,500.00) dollars, darfiages to the person. The defendant appeals. The cause has hitherto been here. 91 S. C. 147, 74 S. E. 137.

The delict charged against the defendant is that it left a box car, or cars, on its tracks, near or at a public highway crossing; that the cars had been occupied by certain wild animals so that they gave out foul odor's; that on the platform near the car defendant suffered to remain a cage inhabited by rabbits which made fluttering noises; that while plaintiff was driving along the highway at and over the crossing, his horse became frightened by the sounds and odors, ran away, and flung the plaintiff out of -the buggy to his hurt.

The answer admitted plaintiff was driving along a road and was injured; denied negligence, and pleaded contributory negligence, apiongst other things, in the management of his horse.

There are nine exceptions, of which seven suggest errors in the charge, and two suggest errors in the admission of incompetent testimony.

In the supplementary argument of the appellant’s counsel are these words: “We respectfully submit that there is merit in the appellant’s second and ninth exceptions, no matter what may be said as to the others.”

That is a helpful and candid statement to make; it informs the Court of counsel’s real contentions.

*107 The charge and the exceptions thereto will be printed in the report of the case.

The first exception is without merit.

The complaint sets out four delicts, and the Court was discussing the fourth, that which has reference to shingles piled near the locus.

2 The exception is that the Court, in effect, charged the jury that the defendant was liable for the simple act of placing or leaving the shingles- at the locus, and without regard to whether the act was negligent or whether it was a proximate cause of the accident. But the Court stated to the juiy that “the other (issue) is that the defendant had negligently and wilfully placed and permitted,” etc.; and the Court had in the inception of the charge instructed the jury that the defendant was in no event liable except for negligence, and had defined what constituted negligence; and referring to- the fourth delict, the Court instructed the jury “it would be one of the questions for you, as to whether or not that was one of the causes contributory in any way to bring about Dr. Settlemeyer’s injury.”

The jury is presumed to have understood from the charge that the defendant was only liable under the fourth delict in the event the shingles were negligently left or placed at the locus, and unless that was a. proximate cause of the accident.

The-third exception is without merit.

3 It is true negligence is the result of inadvertence and wilfulness is the result of intent; but the Court did not instruct the jury that-the same act might be referred to neglect or to intent; the Court had aforetime, at folio 447, plainly advised the jury what wilfulness meant, to wit: a conscious realization of wrongdoing.

The fourth exception is without merit.

*108 4 *107 The Court read to the jury section 1947 of the Code of Taws: but the jury was instructed that the section had no *108 application to the case unless the notice there referred to was given to the railroad company. It is contended, however, by counsel, that no such notice was given, and the jury ought to1 have been so- advised by the Court. But if in fact no‘ such notice was given, then the statute was not applicable, and the jury so- understood.

The fifth exception is without merit.

5 It was correct to instruct the jury that independent of section 1947 of the Code of Laws, the defendant was liable if it left its’ cars, on the tracks so near a crossing as to frighten passing animals by reason of the noxious odors therefrom, and if that was, in the jury’s judgment, negligent.

It is not true that the defendant might leave its cars with impunity on its track near a highway, provided only the cars do not obstruct the highway.

Obstruction is not the only wrong, which might come from a car standing in close proximity to a public crossing.

The sixth exception is without merit.

6 The statement of the appellant’s contention defeats itself. Whether a way exists, and whether it be public, are always questions of fact for a jury, under proper instructions.

The seveiith exception is without merit.

7 By the defendant’s own witnesses the car was within three feet of the ruts of the highway; so- that if the Court did charge about the liability of a railroad company about a car “so distant from said road as not to endanger persons travelling' along highways,” the instruction had no relevancy to- the case at bar, and did not operate on the fact in the case at bar. The defendant made no1 pretense that the car was distant from the crossing.

The eighth exception is without merit.

*109 8 *108 The issue was the liability of the obstruction to1 cause fright to the horse of the plaintiff; and that involves another issue, to wit: The susceptibility of that horse to1 fright. If *109 other horses were affected by the obstruction under like circumstances in the same way the plaintiff’s horse was affected, the inference follows that the obstruction was calculated to scare the ordinary horse. The rule is thus stated in 11 Cyc., p-. 284: “The observed uniformity of nature raises under such circumstances (i. e., identical physical conditions) an inference that like causes will produce like results,” and conversely, that like results, under like circumstances, are probably due to- the same -cause.

And that leaves for the last consideration those two exceptions hereinbefore referred to, the second and ninth; and of these two, the ninth will be first considered, an improper question put to- a medical man.

9 Dr. Heintish was a witness for the defendant, and the question objected to was put to- him on cross-examination.

Here, if there be hurt, it must lie in the answer of the witness, and not in the question of counsel.

The answer ivas: “Where you have a fracture of the skull, of course you have inflammatory symptoms set up, and meningitis, inflammatory symptoms, and in that case epilepsy might follow; and if there be pressure, these conditions might come on any time during the life of the injured person; and (redirect) if'there be an indentation, the signs or symptoms grow worse; and if there be improvement in the patient’s condition, then there was likely no- fracture.

It is manifest from the testimony of the doctor, that the issue whether or not there was a fracture, was not settled by the surgeon’s knife, 'but bjr signs or symptoms from which a fracture might be inferred or negatived. , It was competent on cross-examination to- argue a fracture from symptoms; or to negative a fracture from symptoms, as defendant’s counsel undertook to- do-.

*110 10 Finally, that exception upon which counsel for appellant expended most of his argument is the second. It imputes tO' the charg'e an error of commission, stated in two aspects; and also an error of omission.

But the body of the offense given lies in taking from the jury the decision of whether the plantiff was guilty of a negligence which proximately contributed as one of the causes of the accident.

In short, it is contended the jury was instructed that the plaintiff’s conduct was not negligent.

And for authority, reference is craved to a charg'e on the same subject, by the same trial Judge, already disapproved. Dobson v. Receivers, 90 S. C. 415, 73 S. E. 875.

The particular passage in the charge so assailed, lies betwixt folios 466 and 468, and embraces about twenty lines, starts with “Now, then, g'entlemen,” and concludes with “as contributory negligence against you.”

Theretofore the Court had given to the jury a plain and full charge of what negligence consisted, and of the effect of negligence on the part of a plaintiff.

At the point now under consideration, the Court proceeded to state a limitation on the doctrine of the effect of plaintiff’s negligence theretofore set forth. The limitation was characterized an “error in the extremity of the situation.”

That is to say, if in a noncomplex case a plaintiff acts with negligence, and that act is one of proximate causes of the accident, then he cannot recover..

But, if that act by plaintiff be induced by a perilous situation thrust upon him 'by defendant, which makes it apparently necessary for the plaintiff tO1 act now, then such act is modified by the extremity, and the jury may characterize it, not as negligence, but as excusable apparent necessity, and harmless to defeat plaintiff’s action.

The charge on that subject in the case at bar is not different in principle from the charge above referred to,

*111 The Court instructed the jury here: “If you decide that the railroad company was negligent, (and) that Dr. Settlemeyer was negligent, but that his negligence arose by reason of being put in the extremity of danger by reason of the negligence of the railroad (then) you could not hold that against him as contributory negligence * * *.

Where a * * * railroad brings you in a position of peril by reason of its negligence, and you * * * in that extremity take a wrong course * * * the law would not hold that as negligence against you, unless you failed to act with reasonable care under the extraordinary circumstances of the particular transaction.

Some immaterial words of the charge have been omitted; a few in brackets have been added, to lend clearness, and the last words in italics are those, which ought to have been added by the Court, so that the jury might say at last, whether the plaintiff did that which he ought to- have done, extremity or no extremity. In every transaction, the jury must judge (1) if there be an extremity, and (2) whether the plaintiff, acted thereunder as he ought to have acted. The true rule is stated in Thompson v. R. R., 81 S. C. 338, 62 S. E. 396: “The test is whether a reasonably prudent man, in the same exigency would have (so acted).”

Finally, while the books'do state a rule like that laid down by the Court, the rule of the extremity of the situation, yet the rule is not relevant to1 every transaction. The rule is stated in 21 Cyc. 521; and it is not relevant to the facts of this case, unless to; the facts of every tort case.

It was strictly relevant in the Thompson case, supra; and though the opinion therein did not give a name to the rule, the rule in its essence was applied.

The jury in the case at bar was practically instructed, that this was a case for the application of the rule; and that under the rule, that which the plaintiff did towards the man *112 agement of his horse could not under the extremity of the circumstances be counted against him.

Judgment is set aside, and a new trial is ordered.