I concur in the result. Some of the exceptions which have been sustained in the opinion of Mr. Justice Fraser are based upon isolated portions of the charge; and, if these parts had been considered in connection with the whole charge, which is the rule of this Court in considering exceptions to a charge, the exceptions imputing error in so charging should have been overruled.
I wish, however, especially to note my dissent from the opinion that the case of Edwards v. Ry., 63 S.C. 271,41 S.E. 458, is wrong and should be overruled. That case has *Page 230 been frequently cited by this Court with approval, and there is nothing in it at variance with the law or with any other decision of this Court. Like this case, that action was brought, under the common law and under the statute, for damages for an injury by collision at a railroad crossing. The Circuit Judge correctly charged the law applicable to the common law phase of the case, and also to the case as made under the statute. It appears on page 284 of the report that he charged plaintiff's third request, that if the signals required by statute were not given, plaintiff was entitled to recover, unless his intestate was guilty of gross or wilful negligence, which contributed proximately to the injury. It also appears on page 285 that he charged plaintiff's fifth request, to wit: "When the law speaks of an act of negligence as contributing to the injury, it means as a direct and proximate cause thereof, without which the injury would not have occurred." The exception to that charge was overruled by this Court.
In the cases of Wragge v. R. Co., 47 S.C. 105,25 S.E. 76, 33 L.R.A. 191, and Strother v. R. Co., 47 S.C. 375,25 S.E. 272, this Court held that, in an action under the statute, it was not necessary to show that the failure to give the statutory signals was the proximate cause of the injury. But in the subsequent case of Bowen v. Ry., 58 S.C. 222,36 S.E. 590, the Court said: "When the law speaks of an act of negligence as contributing to an injury, it means as a direct and proximate cause thereof." Though no reference was made thereto, this announcement of the law necessarily overruled the contrary principle which had been ruled in the Wragge and Strother cases. No doubt the request above quoted in the Edwards case was taken from the Bowen case. The rule announced in the Bowen case has been followed ever since. Burns v. Ry., 65 S.C. 229,43 S.E. 679; Duncan v. Greenville, 73 S.C. 254,53 S.E. 367; Turbyfill v. Ry., 83 S.C. 328, 65 S.E. 278; Lee v. R. Co., 84 S.C. 138, 65 S.E. 1031. *Page 231
The points above mentioned are the principal, though not the only ones discussed in the opinion of Mr. Justice Fraser, to which I do not assent. I do not mention the others specifically, because they are of less importance and I have not the time to discuss them.