The assignments of error which, in the opinion of Mr. Justice Woods, should be sustained, are subdivisions (c) and (d) of the third *Page 213 exception, and the fourth exception. They are as follows:
"3. Because the presiding Judge erred in charging the jury as follows: `If it was a rule of the company for the cars to be made up by the train master in the city of Augusta and turned over to the conductor who was to take them out of the city of Augusta, and that conductor had nothing to do with the making up of the train there, then the conductor of the train had a right to assume that suitable and safe appliances had been furnished him, and that the cars had been properly loaded, when he took charge of them. If it was the duty of the conductor to make up his train in the city of Augusta and see that everything was in order, and that the cars were properly loaded, and if the plaintiff in this case was the conductor, and if it was his duty in the city of Augusta to see that everything was in good shape — in good order — when he left there, if he had knowledge of the fact that the cars were unsafe and unsuitable and dangerous — if he had knowledge of that fact and moved those cars, then he assumed the duties incident to his office, being conductor, and he cannot recover. But if the duty was imposed upon the railroad authorities, and such authorities loaded that car and turned it over to him, and it was not his duty to investigate as to whether everything was safe and suitable and in good order, the train which was turned over to him in the city of Augusta loaded by the officials there, then the conductor had a right to assume that safe and suitable appliances had been furnished, that the car turned over to him was properly loaded, and that the machinery to run it was safe, and that the appliances were safe and suitable.' The error (c) being the burden of defendant's defense was whatever may have been the obligations of the plaintiff in relation to taking the train out from the city of Augusta — he was bound to know as conductor, and did know very soon after he started from Augusta, of the defects complained of; and because of such knowledge and because of his conduct with reference to such alleged defects, after knowledge of them, he was not entitled to recover, and the portion of the charge *Page 214 here complained of ignores the question of the existence of any defects after leaving the city of Augusta, and the obligation of the plaintiff with reference thereto, and it was, therefore, erroneous and greatly prejudicial to the defendant. (d) The charge, in effect, charged the jury that if it was not the duty of the plaintiff as conductor to see that the cars were safe and properly loaded when he left Augusta, no duty in this regard was afterwards placed upon him, and during the entire trip he might assume such cars and such loading continued to be safe and proper.
"4. Because the presiding Judge, while instructing the jury as to the law in relation to the knowledge of employees of defects in machinery committed to them, erred in charging as follows: `If the conductor here was injured, and if he had knowledge of any defect or unsafe character or condition, machinery, ways and appliances, and if he knew that the train of cars or anything appertaining to it was dangerous, and he voluntarily took charge of that train, then he assumed the risks incident to his position, and he cannot recover.' The error being in instructing the jury, in effect, that a conductor would be prevented from recovering, if, having such knowledge, he voluntarily took charge of the defective train — and inferentially, that such knowledge acquired after beginning to operate such train, however long before the accident, would have no such effect in preventing a recovery."
His Honor, the presiding Judge, charged the following requests presented by the defendant: "`1. If the jury believe from the evidence that the plaintiff, Barksdale, knew of the defects alleged to be in the lumber car — the train he was operating and the manner in which the lumber referred to in the complaint was loaded — and voluntarily operated the same and took risks of injury therefrom, then he cannot recover.' I charge you that, taken in connection with what I have heretofore said to you along that line.
"`2. If the jury believe from the evidence that the injury of the plaintiff was caused by his own negligence and not *Page 215 by the negligence of the railway company, then they must find for the defendant railway company.' I have already charged you that, and I re-charge it to you as good law.
"`3. If the jury believe from the evidence that the injury of the plaintiff, Barksdale, was directly caused both by the negligence of the railroad company and the negligence of the plaintiff, Barksdale, then the plaintiff cannot recover, and the verdict must be for the defendant railway company.' I have already charged you that, and I re-charge it to you."
His Honor concludes his charge as follows: "Now, gentlemen, if in your opinion the plaintiff here was injured by negligence and carelessness of the railway company and he did not contribute to his own injury, and the carelessness and negligence of the railway company was the direct and proximate cause of his injury, then your verdict will be for him in such sum as you think he has sustained, proportionate to the injury sustained by him. If you believe the plaintiff was injured and that injury was brought about by his own carelessness and negligence, then your verdict will be for the defendant. Or if you believe the railway company was negligent, and that negligence was the direct and proximate cause of the injury of the plaintiff, and the plaintiff was also negligent, and his negligence contributed as a direct and proximate cause of the injury, and the injury sustained by him, if any were sustained by him, was an admixture of negligence of the railway company and the plaintiff himself, then your verdict will be for the defendant." The charge of the Circuit Judge must be viewed in two lights — first, as charging the law generally that was applicable to the case, and, second, as charging specifically upon the questions presented by the requests. Furthermore, the entire charge must be considered in determining whether any particular portion thereof was erroneous. After quoting that portion of the charge set out in the third exception commencing with the words, "If it was the duty of the conductor," Mr. Justice Woods uses this language: "This was all appellant could ask as to the plaintiff's duty before leaving Augusta, but it does *Page 216 not cover his duty after the discovery of defects on the journey. The portion of the charge quoted would, I think, convey the impression to the jury, that the plaintiff might continue to assume the car was not dangerous after he had discovered on his journey the alleged defects and it negatives the idea that he owed any duty to exercise judgment or discretion as to whether he should undertake to carry the car on after he knew of the defects." Conceding that this portion of the charge, standing alone, would convey the impression mentioned by Mr. Justice Woods, and that it should have been accompanied by a statement of the principles announced in his opinion, let us see if the principles were elsewhere charged. The defendant's first request was: "If the jury believe from the evidence that the plaintiff, Barksdale, knew of the defects alleged to be in the lumber car — the train he was operating — and the manner in which the lumber referred to in the complaint was loaded, and voluntarily operated the same and took the risks of injury therefrom, then he cannot recover." The presiding Judge said: "I charge you that, taken in connection with what I have heretofore said to you along that line." Mr. Justice Woods, in considering the exception assigning error in the charge, holds that it was not erroneous, and we concur with him in this conclusion. If, then, there was no error in the manner in which the request was charged, we fail to see how the jury could have been misled into supposing that the plaintiff could recover, if he knew of the defects and voluntarily operated the train. When that portion of the charge set out in the exception is considered in connection with the whole charge, and with the request which was specifically charged, it could not have misled the jury.
The Court being equally divided upon the matter discussed above, the judgment of the Circuit Court must stand affirmed under the Constitution.