I think that the judgment should be reversed upon the clearly erroneous charge concerning the defense of contributory negligence. The Circuit Judge, in explaining the burden of proof which *Page 364 the law lays upon the plaintiff in such a case, declared very properly:
"The plaintiff must not only show that the defendant was negligent, * * * but that such act of negligence * * * was the proximate cause of the injury to the plaintiff."
He then proceeded to define "proximate cause" as referred to the act of the defendant thus:
"`The proximate cause is such a cause that operates to produce particular consequences, without the intervention of any intermediate cause, and without which the injury would not have happened. It is the ruling cause, the efficient cause; it is the ruling cause.' The plainest way I can do this — I have done it dozens of other times to juries — it is the main thing that causes the trouble; that is all it is, the main thing that causes the trouble."
Then he takes up the defense of contributory negligence and defines "proximate cause" in connection with it in practically the same terms; "that the negligence of the plaintiff was the proximate cause of the injury — was the main thing that caused the trouble." He declares this to be the defendant's defense, and necessarily infers that before it can be established it must be shown to have been "the main thing that caused the trouble."
Regardless of the correctness or incorrectness of his definition of "proximate cause" as applied to the acts of the defendant, it is clear that as applied to the acts of the plaintiff it was erroneous to declare that the acts of the plaintiff must be shown to have been the proximate cause of the injury, "the main thing that caused the trouble." Such a charge draws no distinction between the act of the plaintiff which is shown to have been the proximate cause of the injury and the act of the plaintiff which is shown to have been one of the proximate causes which concurring with the negligence of the defendant constitutes the proximate cause. *Page 365
The defendant has the right in defense, to show that the injury did not result from its negligence as a proximate cause; or that it resulted from the negligence of the plaintiff as the sole proximate cause, or that the act of the plaintiff combined as proximate cause with the admitted negligence of the defendant as a proximate cause; the two concurrent acts of negligence constituting the proximate cause, without either of which the injury would not have occurred. It was clearly erroneous to declare that the act of the plaintiff claimed to have been negligent must have been "the proximate cause, the main thing that caused the trouble."
It has been held by this Court over and over again that the contributory negligence of the plaintiff, operating as a proximate cause in the slightest degree, will defeat a recovery.
As far back as Gunter v. Mfg. Co., 15 S.C. 443, it is declared:
"In these cases it was held that where the negligence or default of plaintiff was in any degree the direct or proximate cause of the damage, he was not entitled to recover, however great might have been the negligence of the defendant. * * * It must be understood, in this connection, that the term `proximate' does not mean the sole and direct cause, but it includes all such acts or omissions as may have contributed to the injury complained of, and there may be more than one proximate cause."
If there may be more than one proximate cause, and if the contributory negligence of the plaintiff (of course as a proximate cause) to any extent will defeat a recovery, the error is manifest in requiring that it be the proximate cause "the main thing that caused the injury."
The law of comparative negligence adopted by the Federal Employers' Liability Act (U.S. Comp St., §§ 8657-8665) is a recognition and repudiation of the common-law doctrine that the contributory negligence of the plaintiff *Page 366 to any extent will defeat a recovery. This act, it is needless to say, has no application here, and is referred to solely for the purpose of showing that in all other cases the ancient rule prevailed.
In Thackston v. Railroad Co., 40 S.C. 80,18 S.E., 177, in an exhaustive and able charge by Circuit Judge Izlar, approved by the Court, it is said:
"For the rule, as I understand it, in a case like the present, is, that if the negligence of the plaintiff's intestate contributed in any degree there can be no recovery."
In Shealey v. Railroad Co., 67 S.C. 61, 45 S.E., 119, the Court says:
"In order to constitute contributory negligence, the injured person's negligence must directly and proximately cause the injury, combining and concurring with the negligence of the injured (injuring?) party. * * * A proximate cause is one which operates immediately, not remotely, and is active and efficient in producing the injury. If plaintiff was negligent, and that negligence, moving and operating, brought about the disaster, the natural inference would be that such negligence was an active, efficient and immediate cause of the disaster, and if such negligence moved together, operated together with defendant's negligence, the necessary inference would be that plaintiff's negligence combined and concurred with defendant's negligence in causing the disaster."
It is clear from this authority that it is the character and not the quantum of the plaintiff's contribution that is determinative. The charge under review makes the quantum of such contribution determinative: "The main thing that caused the trouble" necessarily suggesting a comparison between the negligence of the plaintiff and that of the defendant, and not declaring the proper test, the active, efficient cooperation, much or little, in bringing about the occurrence. *Page 367
"It makes no difference that the negligence chargeable to the plaintiff is slight in comparison with the negligence of the defendant. The common law is inexorable that whatever the degree, if it can be said that the plaintiff's negligence contributed to the injury, recovery is wholly precluded." 20 R.C.L., p. 101.
"Any negligence of the plaintiff, however slight, that contributed to the injury, precludes his recovery (assuming of course that it was a proximate cause)" Evans v. ExpressCo. (Ind.), 7 L.R.A., 678, note.
In Easler v. Railroad Co., 59 S.C. 311; 37 S.E., 938, the Circuit Judge had charged the jury:
"It is not sufficient for the defendant to show that the plaintiff may, to some extent, have been careless or negligent; the jury must be satisfied, before they can find for the defendant on such plea as that, that the plaintiff's negligence was the direct and proximate cause of the injury."
This was held reversible error, the Court saying:
"He completely ignored and eliminated the word `contributory,' and practically presented the issue to the jury as if the sole question was whether the injury was caused by the plaintiff's own negligence or that of the defendant; whereas, the issue presented by a plea of contributory negligence is whether both parties were negligent, and whether the negligence of each contributed as a proximate cause to the injury complained of."
It seems to me therefore that when the Circuit Judge imposed upon the defendant the burden of showing not simply that the negligence of the plaintiff contributed as an efficient cause to the collision, but that it was the main thing that produced it, it was impossible for the defendant to have sustained that burden, in view of the common conception that, if the defendant failed to give the signals or failed to keep the crossing in order, that failure was the main cause of the collision, and not the failure to exercise slight care in approaching the crossing. *Page 368
I desire to call attention to the fact that the failure to keep the crossing in order is not alleged in the complaint to have been willful; and therefore should not have been considered, as is done in the leading opinion upon the question of punitive damages.