Langley v. Southern Ry. Co.

The opinion of the Court was delivered by Mr. Justice Hydrick. Besides being unable to concur in all the conclusions stated by the Chief Justice as to imputing the negligence of the driver of an automobile to one riding therein, some of which I deem unnecessary to the decision of this case, I am constrained to dissent from the view that there was error in the charge complained of in the sixth and seventh exceptions. The Chief Justice holds the charge erroneous, not because the statement of the law was incorrect, but merely because it was inapplicable to the facts of the case, and, therefore, misleading. By reference to the fourth and fifth paragraphs of the answer, it will be seen that defendant specially alleged that plaintiff and the other occupants of the automobile were •engaged in a common purpose, and that the automobile was being run at a negligent and reckless rate of speed at the •time of the accident with the knowledge and approval of plaintiff to accomplish their purpose, to wit, to get to Pine-ville ahead of the train to put the young ladies on it. 1 The testimony quoted by the Chief Justice as being relied upon by the defendant to sustain that view of the case is •clearly susceptible of the inference contended for by defendant, to wit, that plaintiff and the other occupants of the automobile agreed to and acquiesced in the purpose suggested by plaintiff to get to Pineville in time •to put the young ladies on the train, after she had been told by her husband that the train was then about due and that *54 they would have to speed, if they got to Pineville in time. She asked him to look back and see if he could see the train. The circumstances, therefore, made it apparent that, to accomplish the purpose suggested by her, it would be necessary to run at great speed; and there was abundant testimony that they were so running. Some of the witnesses testified that they were going at the rate of 30 or 40 miles an hour. The evidence is undisputed that plaintiff’s wishes as to the speed were respected and obeyed. Clearly, therefore, the evidence was susceptible of the inference that she was responsible for the rate of speed at which the automobile was being run. It matters not whether she had the “right” to control the driver, since it is not disputed that she did in fact control him. Clearly, therefore, the evidence warranted the finding that the negligence, if any, in the rate of speed of the automobile, was imputable to her. I think the charge was clearly relevant to the case made by the evidence. 2 Plaintiff has been advised by defendant’s answer and by the testimony adduced that defendant would rely upon that view of the case. The trial Judge says that was the only view suggested to him. We have held in many cases that the failure of the trial Judge to charge the law applicable to every phase or view of the case is not reversible error. If plaintiff had desired instructions as to any other view of the case than that suggested by defendant’s pleading and the evidence adduced in support thereof, and the defendant’s request to charge, she should have requested them. Having failed to do so, the failure of the Judge to give such instructions was not reversible error. I concur in overruling the other exceptions, and, for the reasons above stated, I think the sixth and seventh exceptions should also be overruled, and the judgment'should be affirmed; and, the majority being of the same opinion, the judgment is affirmed. Mr. Justice Fraser concurs.