The opinion of the Court was delivered by This action was commenced April 14, 1922. The issues involve charges of joint and concurrent negligent, reckless, wanton and willful conduct by defendants, George I. Brothers and C.C. Collins, while in the service of the defendant, Atlantic Coast Line Railroad Company, and resulting injury to plaintiff as a proximate cause thereof. Defendants denied the charges made by plaintiff and, on the contrary, alleged that plaintiff's injury was due to his own negligence, gross carelessness, and willfulness, and pleaded as a bar to the action contributory negligence, contributory gross carelessness, and contributory willfulness.
This action was tried at the November, 1923, term of the Court of Common Pleas of Florence County, before his Honor, Judge E.C. Dennis, and a jury. At the conclusion of the testimony, defendant requested of the Court an order directing the jury to write a verdict in favor of defendants, on grounds hereinafter stated in detail. This motion was refused by the Court. Requests in writing for instructions to the jury were presented to the Court by defendants, and those hereinafter quoted were refused or modified. The *Page 46 jury returned, on November 23, 1923, a verdict in favor of plaintiff for $15,000 actual damages against all the defendants. A motion for a new trial was argued and overruled. Judgment for this amount was in due time entered.
There are 13 exceptions, which raise three questions. First, refusal of the Judge to direct a verdict as asked for by the defendants; second, relating to modification of or comment upon of certain of the defendants requests; third, relating to the refusal of the Judge to charge certain of the defendants' requests.
The evidence was conflicting, sharply so; one side swore one way, the other side, the other way. His Honor was not called upon to decide such issues; that was the province of the jury. There was a conflict of evidence as to whether or not proper signals were given; whether either the plaintiff or defendants were guilty of negligence or gross negligence. His Honor committed no error in not directing a verdict, but properly submitted the issues to the jury for their determination.
The crossing statute has been construed in the following cases recently and the question of negligence.Wideman v. Hines, Director General, 117 S.C. 516,520; 109 S.E., 123. Wheelis v. Southern RailwayCompany, 118 S.C. 307; 110 S.E., 154. Richardsonv. Northwestern Railway Company, 124 S.C. 314;117 S.E., 510. Chisolm v. Railway Co., 121 S.C. 394;114 S.E., 503. Woodward v. Southern Railway Co., 90 S.C. 262;73 S.E., 79. Folk v. Seaboard Air Line Railway, 99 S.C. 284;83 S.E., 452. Ritter v. Railroad Co., 101 S.C. 8;85 S.E., 51. Callison v. Charleston W.C. RailwayCo., 106 S.C. 123; 90 S.E., 260.
The exceptions relating to requests modified by the Judge or refused by him are overruled; taking his charge as a whole, it was clear, fully covered the law of the case, and was not prejudicial to the appellants. His Honor had the right to modify the requests submitted to *Page 47 him to conform to the language he should use to convey his idea to the jury. Henry v. Southern Railroad, 93 S.C. 125;75 S.E., 1018.
In Joyner v. Atlantic Coast Line Railroad Company,91 S.C. 104; 74 S.E., 825, this language is used:
"An examination of the Judge's charge as a whole will show that he fully charged the jury as to the law applicable to the case and left the facts to them. It is the duty of the Court to declare the law of the case, and he has a right to do so in his own language, and, when he fully discharges this duty, he is not compelled to charge any abstract questions of law, or even sound propositions of law, applicable to the case, if he has already covered the ground."
All exceptions are overruled and judgment affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES BLEASE and STABLER concur. MR. JUSTICE COTHRAN dissents.
MR. JUSTICE COTHRAN: I do not think that there can be the slightest doubt but that exceptions 5, 6, 7, 9, 11, and 12 are well taken and should be sustained. Let them be reported.