Lowrimore v. Palmer Mfg. Co.

The opinion of the Court was delivered by Mr. Chief Justice McIver. This was. an action to recover damages sustained by the plaintiff, through the alleged negligence of the defendant corporation, while in the employment of the defendant. The case came on for trial before his Honor, Judge Ernest Gary, and a jury. oUpon the call of the case the defendant interposed a challenge to the array of jurors, in the following form (omitting the caption) : “And now at this day, to wit: the 6th day of April, A. D., 1900, at Charleston, in the county of Charleston, at the spring term of Court, upon the call of the above entitled cause for trial, comes as well the aforesaid plaintiff as the aforesaid defendant, 'by their respective attorneys aforesaid, and the jurors empanelled in this cause being summoned, also came, and hereupon the said defendant above named challenges the array of said jurors: 1. Because the said jury was drawn in contravention of art. III., sec. 34, subdi. 11 and 12, of the Constitution of 1895. 2. Because the said act requires that the list of names placed in the jury box should be composed only of those qualified by law to act as jurors; whereas, the said list .contained names of many who were not qualified by law to act as jurors. 3. Because said act is special legislation. And the foregoing the defendant is ready to verify. Wherefore, the defendant prays judgment that said array may be quashed. After argument, the objections to the array of jurors upon the part of the defendant, were overruled. Defendant excepted.” The trial then proceeded, and resulted in a verdict for the plaintiff for the sum of $3,000, and judgment having been entered in accordance with the verdict, the defendant appeals from such judgment upon the several exceptions set out in the record, which, together with the charge of the Circuit Judge, should be included by the Reporter in his report of the case. *167 1 The manifest object of the first exception was to raise the question of the constitutionality of the act of 1900, entitled “An act to further amend chap. XCIV., art. I., of the Revised Statutes of South ‘Carolina, vol. 1, 1893, relating to jury commissioners, as now amended bylaw,” 23 Stat., 320. The first point to be considered is whether the constitutionality of the act of 1900, above referred to, is properly before us, under the “Case” as prepared for argument in this Court. Neither in the challenge to the array, nor the grounds upon which such challenge was rested, nor in the action taken thereon by the Circuit Court, is there any 'hint or suggestion of anjr such question. Indeed, there is no mention made therein of any specific act of the General Assembfy; for while it is true that we find, in the second ground of the challenge, the words, “Because the said act requires, &c.,” and also in the third g-round, similar words, yet as no act has been previously mentioned, it is left wholly to conjecture what particular act of the General Assembly is intended to be referred to by the words “said act.” So, also, there is nothing whatever to show, or even indicate, that the Circuit Judge either considered or passed upon the question of the constitutionality of any act of the General Assembly. All that appears in the “Case” is that he overruled “the objections to the array of jurors;” but upon what grounds he based his ruling does not appear. Again, it nowhere appears in the “Case” that the jurors were drawn under the provisions of the act of 1900, and it is necessary that this fact should appear before the constitutionality of that act could properly arise in this case. Indeed, if we are left to conjecture, we would say that it was at least doubtful whether the officers charged with the duty of securing the attendance of jurors at the spring term of Court, which commenced, we do not know when, except that it must have been on or before the 6th of April, 1900, inasmuch as the act of 1900 did not take effect until the 19th of February, 1900 — the day of its approval by -the governor; and it would have required expeditious work on the part of the several officers to draw *168 and serve the requisite number of jurors within the times allowed for that purpose by the terms of the act of 1900, and those sections of the Rev. Stat. which do not appear to have been repealed. Taking the facts from the “Case” as prepared for argument here, and not from the exceptions or arguments of counsel, as we are required by the well settled rule to do, we feel obliged to say that the question of the constitutionality of the act of 1900 does not necessarily, or even properly, arise under the facts as they appear in the “Case,” and, therefore, we must decline, to consider that question in this case. It is always a delicate and disagreeable duty to declare an act of the General Assembly unconstitutional and, therefore, null and void; and while a Court should not shrink from the performance of such a duty when the question properly arises, and its decision is necessary to the decision of the case in which such a question is properly presented, yet a proper respect for a co-ordinate branch of the government should always forbid a Court from considering or deciding such a question in a case where it is not properly presented by the facts of such case. We must, therefore, upon that ground alone, without expressing or even intimating any opinion as to the question of the constitutionality of the act in question, overrule the first exception. 2 The second exception imputes error to the Circuit Judge in modifying defendant’s fifth request to dharge. We do not understand that the words used by the Circuit Judge, after expressly charging that the proposition of law embodied in that request was good law, in any respect modified such proposition; and the omission to qualify that request by charging the jury as to the effect of contributory negligence, as matter of defense, upon which the jury were subsequently instructed, was not error of law. *169 3 *168 The third exception, imputing error in refusing to charge defendant’s sixth request, in reference to the care, which other well regulated companies engaged in the like business ought to exercise, cannot be sustained. The question, as the Circuit Judge very properly said, was whether the *169 defendant used proper care in furnishing proper machinery and other appliances for the performance of the work required of its employees, and not what other well regulated companies did or ought to have done. What such companies did, may possibly have had some bearing upon the question of fact, as to whether defendant exercised proper care; and the “Case” shows that testimony as to what other companies did, in reference to the matter of furnishing a “dog” — the very matter in which negligence was complained of in this case — was received without objection, and the defendant had the benefit of such testimony. There was really no matter 'of law involved in the request which had not already been charged. 4 5 The fourth exception imputes error in refusing to charge defendant’s seventh request; and the point of that exception is that the Circuit Judge did not go 'far enough in his instructions to the jury by omitting to tell them that even if the jury believe that the injury resulted from defective machinery or appliances, the defendant would not be liable unless they believed from the testimony that the defendant’s negligence in purchasing and overlooking its machinery was the cause of its having defective machinery in use. There are two answers to this. ist. That if the defendant desired such further instruction, he should have submitted a request to that effect. 2d. That in response to defendant’s twelfth request, the Circuit Judge supplied such alleged omission. This exception is overruled. 65 The fifth and sixth exceptions impute error to the Circuit Judge in refusing defendant’s eighth request. These exceptions must be overruled, for two reasons : ist. Because they required the Judge to state a matter of fact, to wit: that the management of all machinery is always attended with more or less danger; and the fact that the Judge in a previous part of his charge, which is not excepted to, had said: “The law recognizes the fact that all machinery is dangerous,” cannot have the effect of converting a matter *170 of fact into a matter of law. 2d. The only proposition of law embodied in the request, viz: “the plaintiff in this case must show by at least the preponderance of -the testimony that the injury was caused by the negligence alleged,” had already been charged. .7 The seventh exception imputes error in the refusal to charge defendant’s eleventh request — that contributory negligence to any extent will always defeat a recovery — cannot be sustained; for it is well settled that contributory negligence only becomes available as a defense, when it is a proximate cause of the injury complained of, combining and concurring with the negligence of the defendant. It is contended, however, that the language used in the eleventh request is the same as that employed by Mr. Justice Jones, in delivering the opinion of the Court in the case of Cooper v. Railway Company, 56 S. C., at page 95. That is true, to a certain extent; but that is not all the language used by Mr. Justice Jones. For in the very same paragraph he had just defined “contributory negligence,” in which definition it was stated that contributory negligence must be such negligence on the part of the person injured as constitutes “a proximate cause thereof, without which the injury would not have occurred.” It is very manifest, therefore, that the distinguished Justice, in using the language imputed to him, meant such contributory negligence as he had just defined, and did not mean that any negligence on the part of the plaintiff, however remotely contributing to the injury, would defeat a recovery. The same remarks will likewise apply to the quotation, made in the argument of counsel for appellant, taken from the opinion of the same Justice, in delivering the opinion of the Court in the case of Disher v. Railroad Company, 55 S. C., at page 192 — for in that case, after using the words quoted: “The law is well settled that contributory negligence by the injured person will always defeat his recovery,” he immediately follows that remark with these words: “But to constitute contributory negligence, the negligence must be not a remote cause in the *171 chain of circumstances resulting in the injury, but must be a proximate cause of the injury.” It is always unsafe to rely upon a single sentence or part of a sentence, without reference to the context, as that very often explains, limits or qualifies the language used in such sentence. 85 The eighth exception imputes several errors to the Circuit Judge, ist. In the definition of contributory negligence, which he gave to the jury. 2d. In refusing to charge the jury the effect of contributory negligence, “as requested by plaintiff” — meaning, of course, defendant. 3d. In leaving the jury without any instructions whatever as to the effect of contributory negligence. This exception cannot be sustained, for several reasons. In the first place, it has been well settled ever since the case of Gunter v. The Graniteville Manufacturing Co., 15 S. C., 443, that a request to a Circuit Judge to charge “upon propositions submitted as a whole, unless they are correct as a whole, it is not his duty to disconnect them, sustaining such as are sound and rejecting such as are unsound.” This doctrine has been uniformly recognized in quite a number of subsequent cases, which it is needless to cite here. Now, as we have just seen that the proposition contained in the eleventh request,, and repeated here, which the Circuit Judge refused to charge, was not a sound proposition of law, that disposes of the second specification of error in the eighth exception. As to the first specification of error, it having been admitted in the argument for appellant here — and very properly admitted — that the definition of contributory negligence as given by the Circuit Judge to the jury was' correct (see Cooper v. Railway Co., supra; Bowen v. Southern Co., 58 S. C., 222; and Easler v. Southern Ry. Co., 59 S. C., 311), the first specification of error is without foundation. As to the'third specification of error, we have already seen that there was no error in refusing to charge, as requested by defendant, what would be the effect of contributory negligence; and it is a mistake to sajr that the jury were left without any instructions as to what would be *172 the effect, if the jury found that the plaintiff was guilty of contributory negligence; for an inspection of the charge shows that the Circuit. Judge did charge defendant’s fourth request, which was in these words: “If the jury believe that the injury received was the result, in whole or in part, of the imprudent, careless or negligent act of Thomas W. Lowri-more, their verdict should be for the defendant company.” The judgment of this Court is, that the judgment of the Circuit Court be affirmed.