May 20, 1922. The opinion of the Court was delivered by Action for damages on account of injury to person and property in a collision between a train and the automobile of the plaintiff at a highway crossing.
From a judgment in favor of the plaintiff, the defendants appeal.
The only assigned error which we shall consider is that claimed to have occurred in the charge of the presiding Judge in reference to the contributory negligence of the plaintiff.
The defendant, as a part of the proposed "case containing exceptions," submitted a transcript of the Judge's charge as taken down by the stenographer, in which the following was set forth: After giving the general law of contributory negligence the Circuit Judge is shown therein to have charged the jury:
"As to a crossing case, it does not apply, unless the contributory negligence on the part of Mr. Howard, if the jury would find was of a gross or reckless kind or amounting asit is said in the statute, to a violation of the law. (Italics added.) He is not deprived of recovering for crossing injuries, unless he is guilty of gross or willful negligence or was acting in violation of law; the idea being that the public have a right to use a crossing just as well as the railroad company, their rights being coequal; and a person injured at a crossing would not be deprived of a right to recover for that injury on the ground of contributory negligence unlesshis contributory negligence was of that character describedin the statute which I have read to you, being gross recklessnessas to amount to a violation of law." (Italics added.)
The respondent served the appellant with a notice proposing an amendment to the proposed case, striking out that portion of the Judge's charge declaring that the gross or willful negligence of the plaintiff must have amounted to a violation of the law, upon the ground that he had made no such declaration; that the transcript was erroneous in this regard. *Page 4
The appellant refused to allow the proposed amendment and gave notice of a motion before the Circuit Judge to settle the "case."
It appears that the case was tried November 15, 16, 17, 1920; the proposed case was served February 4, 1921; the proposed amendments were served March 17, 1921; the motion to settle the case was noticed for April 4, 1921, but was not heard until April 18, 1921; the order settling the case was not filed until July 6, 1921.
The Circuit Judge, in his order settling the "case," thus expresses himself upon the issue of the correctness of the reported charge:
"I am not prepared to contradict Mr. Anderson's report of the language used in the portion of the charge objected to."
After stating that the defendant's counsel had accepted the plaintiff's first proposed amendment which evidently was not the amendment under consideration, he concludes:
"The rest of the `case' will be printed as proposed by defendants, together with this order."
The necessary effect therefore of the order settling the case is to leave the objectionable matter in the transcript of the charge just as proposed by the defendant.
The efforts of the counsel for respondent to have that matter expunged from the charge and the repudiation of it by the Circuit Judge are strongly persuasive of its incorrectness.
Aside from this, the language of the statute is conclusive upon the issue. It provides, "unless it is shown that, in addition to a mere want of ordinary care, the person injured * * * was, at the time of the collision, guilty of gross or willful negligence, or was acting in violation of the law" (Civ. Code 1912, § 3230), plainly providing for alternative conditions in no sense synonymous. The defendant relied upon the alleged gross negligence of the plaintiff, not that he was acting in violation of law; and for the Judge to add the requirement that such *Page 5 gross negligence as would relieve the defendant must, as declared in the statute, have amounted to a violation of the law, was plainly prejudicial error.
Nor do we agree to the suggestion that so plain an error should have been called to the attention of the presiding Judge. As is said by the Court in Nicklesv. R. Co., 74 S.C. 102, 54 S.E., 255:
"Whatever may be the view elsewhere our cases support the view that an instruction upon an issue as to which there is no evidence whatever or a mistake in stating issues, is not reversible error unless the attention of the Court is called to the matter."
The error here falls in neither of these classes; nor can it be considered an inadvertence, for it was repeated after a correct statement of the law had been made; the correct statement being sandwiched between the two erroneous statements. The distinction is clearly stated by Chief Justice McIver in the case of Easler v. R. Co., 59 S.C. 311,37 S.E., 938:
"If he had inadvertently or for any other reason omitted to charge the jury as to the law of contributory negligence, then, possibly, a request would have been necessary for the purpose of calling the attention of the Circuit Judge to such omission. But here he undertook to charge the jury as to the law of contributory negligence, and the complaint is that he erred in the instructions which he gave to the jury as to the law of contributory negligence."
We have examined the charge with care to ascertain whether or not the error complained of could be said to have been dissipated by a correct statement elsewhere, but find no suggestion of a correction. What immediately follows is an analysis of the defendant's contention as to the gross contributory negligence of the plaintiff; there is no suggestion that it is not controlled by the preceding statement; the inference necessarily is that it is so controlled. *Page 6
The judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.