April 12, 1915.
The opinion of the Court was delivered, after reciting the foregoing statement of facts, by The questions raised by the exceptions as condensed by appellant are as follows:
Did his Honor err in refusing defendant's motion for a continuance?
The appellant admits that a continuance was within his Honor's discretion, but urges an abuse of discretion. It does not appear that there was an abuse of discretion. Besides this, the motion was for a continuance for one day to enable the appellant's witness to reach the place of trial. It appears that the witness did not appear on the second day. The ruling was not, therefore, prejudicial.
Did his Honor err in refusing defendant's motion (a) for a nonsuit, (b) for direction of verdict, and (c) to set aside the verdict and for a new trial? There was abundant evidence to carry the case to the jury unless it be the law of this State that a passenger car, under no circumstances, recover for an injury which he received in doing a thing which he has been forbidden to do by a conductor. A careful search of the record fails to show that this question was made in the Circuit Court and it cannot be made here.
Did his Honor commit error of law in his charge to the jury?
Exception IV complains of error in the statement of the Judge as to certain propositions upon which *Page 463 "counsel on both sides have agreed." The rule is too well settled to need the citation of authority, that where the presiding Judge misstates the issues his attention must be called to his error at the trial or the error is waived.
"Exceptions V and VI, that his Honor clearly intimated his opinion on the facts of the case." A careful consideration of the charge will show that the excerpts taken in their connection are a mere statement of the issues.
Exception VII is as follows:
"That his Honor erred in charging plaintiff's sixth request, to wit: `If you find that plaintiff was injured as the result of negligence of the defendant, as alleged in the complaint, then the plaintiff would be entitled to recover actual damages for the injury by him sustained;' the error being, that his Honor failed to qualify the same by adding after the word `complaint,' `to which plaintiff's negligence did not contribute as a proximate cause,' or words to that effect."
His Honor charged the law as appellant claims it ought to have been charged in response to appellant's third request to charge, which was a fuller statement of the law.
Exception VIII is not argued, but submitted on exception VI.
The ninth exception complains of error in a modification of defendant's fourth request to charge. The request was as follows:
"4. As to both causes of action I charge you that the plaintiff, Mr. Watkins, cannot recover if you find from the evidence that his injury, if he was injured, was due to his own fault, and not to the fault of the defendant railway company."
His Honor modified as follows:
"4. As to the second cause of action I charge you that the plaintiff, Mr. Watkins, cannot recover if you find from the evidence that his injury, if he was injured, was due to *Page 464 his own fault, and not to the fault of the defendant railway company."
This was error. Doubtless his Honor had in his mind the rule as to contributory negligence. The defendant pleaded contributory negligence, but it also pleaded that the plaintiff was the sole author of his own injury. The defense that the plaintiff is sole author of his injury is as complete defense, if proven, to wilfulness as it is to negligence, and when it is pleaded and a request to charge is made, the defendant is entitled to have the law in regard to it charged and not to do so is error. Moore v. GreenvilleTraction Co., 94 S.C. 249, 77 S.E. 928.
It is true his Honor, under the defendant's eighth request, charged the law correctly, but this was not merely an incomplete statement and the jury may have understood that the modification applied to the eighth request, inasmuch as he had already confined the defense to wilfulness.
Exceptions X and XI have already been considered.
The judgment appealed from is reversed and a new trial is ordered.
MESSRS. JUSTICES HYDRICK and WATTS concur in the opinion of the Court.