I concur in the view of Mr. Justice Gary, that the judgment *Page 217 of the Circuit Court should be affirmed. As shown in the case of Bodie v. R.R. Co., 61 S.C. 478, 39 S.E., 715, the defenses of "assumption of risk" and "contributory negligence" are distinct. Being affirmative defenses, they must be pleaded to be available — 13 Ency. Pl. Pr., 914. The defendant not having pleaded "assumption of risk," it did not have any right to have the jury instructed with reference to such matter. In so far, therefore, as the Circuit Court undertook to instruct the jury in that regard, the appellant received favor and not prejudice, and cannot complain if the Court failed to cover every aspect of the doctrine of "assumption of risk." The fact that a servant remains in the master's service after knowledge of the defective or unsafe condition of the machinery or appliances furnished him to operate, bears upon the defense of "contributory negligence" as well as upon the question of "assumption of risk;" but in neither case is it proper to instruct the jury as matter of law that a servant cannot recover for injuries sustained in the operation of defective or unsafe machinery or appliances after knowledge of such condition, but in all such cases it must be left to the jury, from all the circumstances, to determine the proper inference to be drawn from the continuance to operate after knowledge of the defective or unsafe condition. The charge of which the complaint is made, stated correctly, is as follows: "If it was the duty of the conductor to make up his train in the city of Augusta, and see that everything was in good order and that the cars were properly loaded, and if plaintiff in this case was the conductor, and 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 *Page 218 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. Now, under the Constitution of this State, a conductor of a train is excepted from other employees of the railroad company. If the conductor here was injured, and if he had knowledge of any defective or unsafe character or condition of the machinery, ways or appliances, and if he knew that the train of cars or anything appertaining to it was dangerous or unsafe, and he voluntarily took charge of that train, then he assumed the risks incident to his position, and he cannot recover. If the cars were unsuitable and the appliances were unsuitable and unsafe, and he had no knowledge of the danger he was running; or if he had no knowledge of the fact that they were unsuitable or unsafe; if they were not plain to the eye but the defects were hidden, then he would be entitled to recover, provided you think he was injured through the carelessness and negligence of the railroad, and he didn't by his own act contribute towards his injury. The defendant has requested me to charge you the following proposition of law: `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 the 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." This charge, it seems to me, was too favorable to the appellant — first, in submitting to the jury whether plaintiff has assumed the risks in continuing to operate the cars after knowledge of their unsafe condition, when no such defense had been pleaded; and second, in so far as the charge might be construed as relating to the plea of contributory negligence, in *Page 219 denying plaintiff's right to recover, if he voluntarily took charge of the train and operated it after knowledge that it was unsafe, instead of leaving it to the jury to decide whether such facts under the circumstances warranted a conclusion that the plaintiff thereby proximately contributed to his injury. But when the whole charge to the jury is considered, and especially that portion relating directly to the matter of contributory negligence, it is manifest that defendant's issue of contributory negligence was fully, fairly, correctly and explicitly submitted to the jury. It must also be observed that the objection urged against the charge relates to a mere omission to charge as to a matter not brought to the attention of the Court by a specific request to charge the matter omitted.
Therefore, while I concur in the views of Associate Justice Woods, that the motion for a nonsuit was properly refused, I agree with Mr. Justice Gary, that the judgment of the Circuit Court should be affirmed.
Submitted on printed Briefs. — R.