This is an action by the administrator of the estate of Noah Y. Wilson, deceased, a citizen of Lexington County, State of South Carolina, for damages arising from the alleged negligent killing of the deceased by the defendant, at Winnsboro, S.C. a station on the railroad of the defendant, and resulted in a judgment in favor of the plaintiff for $4,500. The corporate existence of the defendant is thus alleged in the complaint:
"2. That the defendant, the Southern Railway Company, is a corporation created and existing under the laws of this State, and was at the time hereinafter mentioned controlling and operating as owner thereof, a railroad known as the Charlotte, Columbia and Augusta Railroad (a corporation duly created under the laws of this State), extending from Charlotte, in the State of North Carolina, through the State of South Carolina to the city of Augusta, in the State of Georgia, and having stations along said railroad in the county of Fairfield, in the State of South Carolina, for the transaction of business, and also has, in the city of Columbia, S.C. offices where it transacts and manages its business; and the defendant owned and operated, and now owns and operates, the locomotives, cars and other appurtenances of said railroad." The complaint also alleges that the defendant violated the ordinance of the town of Winnsboro, making it a misdemeanor "for any person or persons to run, or cause to *Page 171 be run, any train of cars through the town of Winnsboro at a greater rate of speed than six (6) miles per hour."
The defendant answered the complaint as follows:
"For the first defense.
"1. Denies each and every allegation therein contained except so much thereof as is hereinafter admitted.
"2. Alleges that it is, and was at the time of the commencement of this action and at the times hereinafter mentioned, a corporation duly chartered and organized under and by the laws of the State of Virginia, and a citizen thereof, with authority under its charter to purchase and lease railroads, both inside and outside the State of Virginia.
"3. That on or about the 10th day of July, 1894, the defendant purchased the Charlotte, Columbia and Augusta Railroad, at a foreclosure sale, under decree of foreclosue and sale rendered in a suit in the United States Circuit Court for the Fourth Circuit in the District of South Carolina, upon a mortgage made by said the Charlotte, Columbia and Augusta Railroad Company, of said Railroad; that said Charlotte, Columbia and Augusta Railroad was a line of railway extending from the city of Charlotte, in the State of North Carolina, through the State of South Carolina to the city of Augusta, in the State of Georgia, and a connecting link in a through line of railway owned, controlled and operated by defendant, having termini in different States, and as such constituted part of the machinery whereby defendant carried commerce between the States; and said railroad is now owned, controlled and operated by defendant as one of the connecting links in the said through line of railway of this defendant company.
"4. That among the laws of the State of South Carolina, under and by virtue of which defendant purchased and is now operating the aforesaid railroad in the State of South Carolina, is an act of the General Assembly of said State entitled 'An act to declare the terms on which foreign corporations may carry on business and own property in the State of South Carolina,' approved December 20, 1893 (XXI. *Page 172 Stat., 411), and defendant alleges that on the day of July, 1894, it fully complied with the terms and conditions of said act, and has since said time so complied.
"5. That on the day of January, 1897, this defendant did file in the office of the secretary of State of the State of South Carolina, a copy of its charter, authenticated in the manner directed by law for the authentication of the statutes of the State of Virginia, under whose laws it was chartered and organized, and did further, prior to the day of July, 1899, and prior to the alleged injury to the plaintiff's intestate, cause a copy of said charter to be recorded in the office of the register of mesne conveyances in the counties of said State in which it was carrying on its business; that said acts were done in compliance with the act of the General Assembly of South Carolina, entitled 'An act to provide the manner in which railroad companies, incorporated under the laws of other States or countries, may become incorporated in this State,' approved March 19, 1896; but defendant alleges that by such acts it did not deprive itself of the right as a citizen of the State of Virginia to remove causes and actions brought against it by the citizens of South Carolina in the Courts of this State to the United States Circuit Courts sitting in said States, under the act of Congress in such case made and provided; nor did such acts done by it deprive such Federal Courts of the jurisdiction to hear and determine such causes when so removed." The answer also set up as a second defense that the plaintiff's intestate was a trespasser, and was guilty of contributory negligence.
After hearing argument on defendant's petition for removal on the ground of diverse citizenship, his Honor, the presiding Judge, granted the following order: "A petition and bond for the removal of this case to the Circuit Court of the United States for the District of South Carolina was duly filed in this Court by the defendant, and its counsel now presents said petition and bond, and asks the Court to accept said petition and bond, and proceed no further with this suit, except to pass an order to remove the record into the United *Page 173 States Court. I am of the opinion that by compliance with the act of the General Assembly of South Carolina, approved March 9, 1896, the defendant has become a citizen of this State, and hence there is no diverse citizenship to entitle the defendant to an order of removal. The motion for such order must be refused, and it is so ordered."
The defendant immediately served notice of appeal and exceptions on the plaintiff. The record contains the following statement of facts: "After the service of said notice of appeal, the case was called for trial. The defendant objected to proceeding to trial, on the ground that the Court had no jurisdiction. It further objected to proceeding with the trial of the case, upon the ground that the notice of appeal which had been served operated as a supersedeas, and that until such appeal should be heard, the Court could not proceed with the trial. Both objections were overruled, and the presiding Judge ordered, against such objections of the defendant, the case to proceed to trial, and thereupon a jury was empanelled to try the cause. The plaintiff introduced testimony tending to maintain and prove the allegations of his complaint. The defendant introduced testimony tending to disprove the allegations of the complaint, and to maintain and prove the defenses set up in its answer."
The defendant appealed upon the following exceptions:
"To the order refusing to remove cause:
"1. Excepts, because the presiding Judge erred, as a matter of law, in holding that defendant, by complying with the act of March 9, 1896, of the State of South Carolina, in filing its charter in the secretary of State's office, became a corporation and a citizen of the State of South Carolina, and hence could not remove the said case to the Federal Court.
"2. Excepts, because the presiding Judge erred, as a matter of law, in not deciding that notwithstanding such compliance with the act, the defendant, for purposes of jurisdiction in the Federal Courts, still remained a citizen of the State of Virginia, and upon the face of the record was entitled to an order of removal. *Page 174
"3. Because the presiding Judge erred, as a matter of law, in refusing to accept said petition and bond, and proceed no further in said suit.
"To the ruling compelling defendant to proceed to trial:
"4. Excepts, because the presiding Judge erred, as a matter of law, in ordering, against the protest of defendant, the said case to proceed to trial in said Court, and in proceeding to try said case, against the objection of the defendant to the jurisdiction of said Court.
"5. Excepts, because the presiding Judge erred, as a matter of law, in holding that the notice of appeal served upon plaintiff did not operate as a supersedeas to stay all further proceedings in said Court until said appeal could be heard by the Supreme Court, and in directing that the said case should proceed to trial, notwithstanding defendant's objection.
"To the judgment and ruling of the Court:
"6. Excepts, because the presiding Judge erred, as a matter of law, in charging the jury the plaintiff's first request, which was as follows: '1. That the violation of a statute or a valid municipal ordinance regulating the speed of railroad trains is negligence, and whether such negligence under any given circumstances be gross, or reckless, or wilful, is a question for the jury;' whereas, he should have charged them that the violation of such statute or ordinance is only a circumstance from which the jury may infer negligence."
This case was heard in connection with the case of Calvertv. Southern Railway Co. by the Supreme Court en banc, and as the question of removal is involved in both cases, and was the sole question in the case of Calvert v. Southern Ry. Co., we have selected that as the case in which to set out, at length, the views of this Court upon that question. What was there said disposed of the questions raised by the exceptions in this case relating to the right to removal.
We proceed to a consideration of the exceptions to the rulings compelling the defendant to proceed to trial. In the first place, the facts upon which the defendant made the motion *Page 175 for an order removing the case, were not in controversy, and the objection urged by it, why the State Court should not proceed with the trial of the case, were in the nature of a demurrer to the jurisdiction of the State Court, and, therefore, falls within the provisions of sec. 356, the proviso of which is as follows: "Provided, An appeal from a judgment or decree overruling a demurrer shall stay the further hearing of the cause unless the presiding Judge shall be satisfied that the ends of justice will be subserved by proceeding with the trial, and shall order the trial of the cause to proceed to judgment." The presiding Judge was satisfied that the ends of justice would be subserved by proceeding with the trial and properly ordered the trial of the cause to proceed to judgment. In the second place, the Circuit Court had jurisdiction of the case at the time of trial, as the return had not been filed in the Supreme Court. In the case of Pelzer Manufacturing Co. v. Cely, 40 S.C. 432, the Court, by Mr. Chief Justice McIver, thus states the rule: "As we understand it, the Circuit Court having once acquired jurisdiction of a cause and the parties thereto, retains such jurisdiction until it is lost, and it is not lost until the jurisdiction of this Court attaches. Now, as it has always been held that the jurisdiction of this Court does not attach until the return required by rules 1 and 2 has been filed in this Court, for the obvious reason that until the return is filed, this Court has no record upon which it could take jurisdiction of any cause, except such as are specially provided for, either by the Constitution, the statutes or rules of Court, and as it is very clear that the present case does not fall within any of those classes, it follows necessarily that this Court never acquired jurisdiction of this cause until after the return was filed." It is true, there are expressions in some of the cases that are not in accord with this doctrine, arising from a misconception of the facts in the case of Bank v. Stelling, 32 S.C. 102, and from decisions rendered before sec. 356 of the Code was amended. In the last mentioned case, the Court says: "While this appeal was pending and *Page 176 before the Court announced its judgment, the case came up before his Honor, Judge Wallace, who heard the case, notwithstanding the pending appeal, which was brought to his attention. * * * From the view which we have taken of these cases, we have reached the conclusion that the fifteenth exception must be sustained, which demands a reversal of the judgment below, on the ground that at the time the cases were heard below by his Honor, Judge Wallace, an appeal was then pending in this Court which in our judgment deprived the lower Court of jurisdiction."
Lastly, we will consider the exception to the judgment and rulings of the Court. We do not recall any case in which the exact question raised by the exception has been presented to this Court for adjudication. There are several cases in this State deciding that it is negligence per se for a railroad company to fail to comply with the provisions of sec. 1685 of the Rev. Stat., as to ringing the bell or sounding the whistle within a certain distance, when approaching a highway, c. The ordinance hereinbefore mentioned was dependent for its validity on the act of the legislature granting a charter to the town, and, as the legality of the ordinance is not in controversy, it must be construed to have the same force and effect as an act of the legislature. There is, therefore, no reason why the violation of an ordinance should not constitute negligence per se as effectually as the violation of an act of the legislature. Again, negligence is in general a mixed question of law and fact. When, however, the facts are not in controversy, and there is but one inference to be drawn from them, they only present a question of law to be determined by the Court and not by the jury. In this case, it does not appear that the facts touching this question were in controversy, nor is there anything in the record showing that they were susceptible of more than one inference. There was, therefore, no error in charging plaintiff's first request. There is still another reason why the exception cannot be sustained. It is not only incumbent on the appellant to show that there was error, *Page 177 but he must also show that he thereby suffered prejudice. There is nothing in the record upon which such fact can be based.
The judgment of this Court should be that the judgment of the Circuit Court be affirmed.
MR. JUSTICE POPE and CIRCUIT JUDGE TOWNSEND concur.