April 9, 1931. The opinion of the Court was delivered by In the first trial of this case, a judgment in favor of the plaintiff in the total sum of $10,000.00, including both actual and punitive damages, resulted. On appeal to this Court by the defendant, that judgment was reversed. 150 S.C. 29,147 S.E., 625. The unanimous opinion of the Court at that time, however, sustained the right of the plaintiff to have *Page 47 the case submitted to the jury on its merits. The second trial in the Court of Common Pleas for Chester County, before Hon. M.M. Mann, presiding Judge, and a jury, resulted in a verdict in favor of the plaintiff for $25,000.00, actual damages, thus showing that sometimes it is dangerous to appeal; and confirming the wise saying that in some instances it is better to "bear those ills we have than fly to others that we know not of."
The appeal by the defendant to this Court presents sixteen exceptions, but these are treated in the brief as presenting only eight propositions for consideration.
Appellant's first proposition is that the presiding Judge erred in not granting its motion to require the jury to find a special verdict upon certain particular issues or questions of fact. Section 542 of the Code of Civil Procedure (Vol. 1, Code of 1922), leaves it altogether to the discretion of the trial Judge to decide whether or not he should submit special issues of fact to the jury. Floyd v.Insurance Co., 110 S.C. 384, 96 S.E., 912. This proposition must be decided, therefore, against the appellant.
The exceptions grouped as propositions, 2, 3, 4, 5, and 6, relate to the charge. The appellant submitted twenty-four requests to charge, twenty of which were charged without any modification. The nineteenth request referred to punitive damages, and it is eliminated by the verdict, which did not include punitive damages. Three of the requests, the tenth, twenty-first, and twenty-fourth, were withdrawn; counsel for the appellant stating to the Court that they had been covered in the general charge. Among the requests withdrawn were the following:
"10. If you find from the evidence that the driver of the car in which plaintiff was riding, and who had charge of the person of the plaintiff, heard the signal or whistle of the approaching train in time to have stopped his car, and, knowing that the train was approaching, still attempted to cross the track without making any effort to ascertain how close *Page 48 the train was, then such fact would render the said party guilty of gross contributory negligence as a matter of law, and the plaintiff could not recover. In such case the continuous statutory signal could not have given a more complete warning than such person had; and in such case if you find from the evidence that this was true, it would be the negligence of the person having charge of the person of plaintiff in failing to heed the approach of the train, that would be the proximate cause of the injury."
"24. While, under the decisions of the Supreme Court, there is a presumption that the failure to give the statutory signals creates a presumption that such failure is the proximate cause of any subsequent injury by collision and also affords the presumption that such failure was willful and negligent, still such presumptions are like other presumptions of law in that they may be rebutted by all other evidence in the case; and if the evidence rebuts such presumption, then the proximate cause of the injury, as well as willful and wanton injury, must be established by the evidence and from all of the surrounding circumstances in the case."
The respondent, while riding in an automobile owned by another, upon the invitation of the driver of the vehicle, was injured in a collision at a railroad crossing. His complaint set up both negligence and willfulness in the operation of the train, and the particular acts of negligence complained of were specified in considerable detail. Taken as a whole, the charge of the Judge clearly presented the issues made by the pleadings. There was no suggestion on the part of the appellant, either by request to charge, or request for a fuller charge, or by objection or otherwise, that any of the specifications of negligence, alleged in the complaint, should have been withdrawn from the jury's consideration.
As pointed out in many cases, and lately in SumterTrust Co. v. Holman, 134 S.C. 412, 132 S.E., 811,814: "The whole charge must be considered in determining if there was prejudicial error." So the requested *Page 49 instructions submitted by the appellant, which covered in detailed statement every phase of the law of negligence applicable to the case, must be taken together with the general charge; and when the charge here under examination is so considered, we think it was free from harmful error. SeeGladden v. Railroad, 142 S.C. 492, 141 S.E., 90; Tynerv. Railroad, 149 S.C. 89, 146 S.E., 663.
At the request of the appellant, the trial Judge particularly called to the attention of the jury the proposition that, "in crossing cases under the statute law of the State," an automobile driver's gross, willful negligence would be imputed to any occupant of the car, and would bar recovery for any injury sustained in such collision. It is to be noted, too, that one of the requests withdrawn by the appellant (No. 10), was directed to the same point. If it had been charged, and doubtless it would have been if it had not been withdrawn, it would have cleared up any seeming confusion that the general charge on imputed negligence might have left in the mind of the jury.
As to the charge of the trial Judge concerning "common enterprise," the testimony did not warrant the inference that the respondent was engaged in a "common enterprise" with the driver of the automobile at the time of the collision; and in submitting that question to the jury, the charge was favorable to the appellant. The general rule, supported by abundant authority, has thus been stated: "A mere guest or gratuitous passenger riding with the driver of a motor vehicle by invitation is not engaged in a common or joint enterprise with the driver, and this is so notwithstanding the guest asks to be driven to a certain place, indicates the route to be taken, or points out the dangers to be encountered, or that both parties have certain plans in common." 42 C.J., 1179.
Since the complaint alleged that the appellant's failure to give reasonable and adequate warning was wanton and willful, the issue of willfulness was properly *Page 50 before the jury, for it has been held that evidence of the failure to give statutory warning signals requires the submission of the issue of willfulness. Brogdon v. Railroad,141 S.C. 239, 139 S.E., 459. The appellant now objects to the charge of the trial Judge because he instructed the jury, in effect, the "last clear chance" or "discovered peril" doctrine, by stating that if the engineer sees one going on the track, "even though they are doing wrong," then the engineer "must do all that he reasonably can to put them on notice of the approach of the train and the presence of imminent danger, regardless of statutory requirements." The charge given is sustained by the declaration of this Court inChisolm v. Railroad Company, 121 S.C. 394,114 S.E., 500, 502. In that case, this was said:
"The inquiry must therefore proceed upon the hypothesis that there was a willful or wanton disregard of the duty owed by defendant to give due and timely warning of the approach of train. * * *
"As a matter of law the right of the enginemen on the lookout to assume that the intestate in apparent possession of his faculties would not go upon the track in front of the advancing train did not relieve them of the common-law duty of giving reasonable notice by signal of the train's approach to the crossing. If because of the failure to give such notice the intestate went upon the track and was injured, however derelict he might have been in failing to exercise due care himself, it cannot be held that his own default was the sole proximate cause of the injury.
"In order to bar a recovery, therefore, the appellant must sustain the * * * proposition, * * * that the conduct of the intestate amounted to a wanton and willful default which contributed to the fatal injury as a proximate cause."
Exception is taken to the charge of the trial Judge upon the matter of damages. The evidence disclosed beyond question that the respondent sustained very *Page 51 severe injuries, permanent in nature; that he was confined in a hospital for many months; and that there had resulted serious impairment of his ability to earn a living. In referring to actual damages, the Judge said the verdict should be "such and what as, in dollars and cents, you think would place Mr. Key where he was before he was injured, if possible. It cannot be done, but you must do the best you can." It is now said that the instruction given was a charge upon the facts and also that it left the jury to speculate as to the amount of damages, if any, that should be found for the respondent. It is also urged in line with this argument that the verdict was so excessive that it indicates capriciousness, bias, and prejudice. We can see no objection to the charge, especially since the appellant did not at the time complain of its insufficiency, and made no request that any further charge be given. Neither can we say, as a matter of law, that the Judge failed to exercise properly his discretion to reduce the verdict, for the great injuries received by the respondent warranted a substantial verdict. Veronee v. Charleston, etc.,Co., 152 S.C. 178, 149 S.E., 753.
In its answer, the appellant set up an alleged agreement on the part of the respondent to release and discharge it from liability upon payment by the appellant of certain hospital and surgeons' bills, and that pursuant thereto the appellant fully performed the agreement by assuming, by and with the consent of the Chester Sanatorium, the payment of such charges and expenses. This alleged agreement was denied by the respondent. The question whether or not he entered into such an agreement was submitted to the jury under very clear and appropriate instructions, and the trial Judge, following the former decision of this Court, told the jury that the agreement was one the respondent had the right to make, and if he did make it, he was to be held to it. The testimony on this issue to sustain a finding against the appellant's contention was ample. Moreover, the appellant having failed to make a motion for a *Page 52 nonsuit or a motion for a directed verdict, it cannot now properly charge error on the part of the trial Judge to grant its motion for a new trial because of these matters. Builders,etc., Co. v. Cheek, 139 S.C. 299, 137 S.E., 734.
The appellant's fourth proposition raised by Exceptions 4, 5, 7, and 10 is stated as follows: "There was error in charging the jury with reference to proximate cause under the statutory cause of action, if there was a failure to give the required signals, as such construction of the statute was contrary to the Constitution of the United States."
Counsel for the appellant frankly admit in their brief that this constitutional question was not raised in the lower Court, but they insist that it is not necessary to raise such question except in this Court, and especially since a similar constitutional question, involving the validity of the crossing statute, is involved in Ford v. Railroad Company — a case now pending in this Court and undecided — the rights of the appellant should be preserved. The respondent insists, and without doubt rightly so, that we should follow the well-settled line of decisions holding that such a question cannot be considered on appeal unless it has been first raised in the Court below. Bomar v. Railroad Co., 30 S.C. 450,9 S.E., 512; Burnett v. Railroad Co., 62 S.C. 281, 40 S.E., 679;Hunter v. Bamberg County, 63 S.C. 149, 41 S.E., 26;Henry Mercantile Co. v. Graham, 108 S.C. 125,93 S.E., 331; White v. Railroad Co., 142 S.C. 284, 140 S.E., 560, 57 A.L.R., 634.
The judgment of this Court is that the judgment below be, and the same is hereby, affirmed.
MESSRS. JUSTICES STABLER and CARTER concur.