February 16, 1910. The opinion of the Court was delivered by This is an action for damages, arising out of the alleged negligence of the defendant, in causing the death of plaintiff's intestate.
The complaint alleges: "That in the evening, on or about the 23d day of October, 1906, the defendant, while running one of its cars on one of its tracks on Gervais street, at or near its intersection with Laurens street, on a down grade, in the said city of Columbia, at a rapid rate of speed, and *Page 572 in violation of law, without warning or signal, and without having air brakes or other brakes than hand brakes on said car, and without having a fender on said car, and without having the headlight of said car lighted, carelessly, negligently, wilfully, and recklessly ran on and against said Mary Martin, who was crossing said Gervais street diagonally, facing almost in the direction in which said car was being run, and with her back towards said car, and who was in the act of crossing said track, knocking her down, running over her and dragging her body along the track of said defendant, causing the death of her, the said Mary Martin."
His Honor, the presiding Judge, instructed the jury that there was no testimony tending to show that the plaintiff was entitled to punitive damages.
The jury rendered a verdict in favor of the plaintiff for one thousand dollars, and the defendant appealed upon exceptions which will be set out in the report of the case. We proceed to consider them in regular order.
First exception: There was testimony tending to prove negligence on the part of the defendant in three particulars:
(1) in running the street car at a greater rate of speed than was allowed by the ordinance of the city, which is negligence per se, Dyson v. Ry., 83 S.C. 354; (2) in failing to give proper signals; and, (3) in running the car without a headlight, a violation of the city ordinance.
Under these circumstances, the question as to the proximate cause of the injury was properly submitted to the jury.
Second exception: In the case of Brickman v. Ry., 74 S.C. 306,54 S.E., 553, a similar exception was overruled, on the ground that "when the presiding Judge errs, in stating the issue raised by the pleadings, it is incumbent on the parties to call his attention to such error, if it is to be made the basis of an appeal." Numerous *Page 573 other cases, sustaining this principle, are cited in the argument of the respondent's attorneys.
Third exception: In commencing his charge the presiding Judge said: "I am going to take the liberty of not reading over these requests to the jury. I am going to pass on them in my general charge and cover all the requests, which, in my judgment, are pertinent and correct."
It will thus be seen that there was not a refusal to charge the request; and, in the general instructions, it was substantially charged.
Fourth exception: When the portion of the charge set out in the exception is considered in connection with the entire charge, it will be found to be free from error.
Fifth exception: The presiding Judge was not requested to charge simply, "that it is the duty of one, crossing a railroad track, to use his senses of sight and hearing." He could not have charged what facts would constitute contributory negligence in the particular case, without invading the province of the jury.
In the case of Weaver v. Ry., 76 S.C. 49, 56 S.E., 657, the rule is thus stated: "The presiding Judge could not have charged the said requests without intimating to the jury the inference to be drawn from the facts therein so carefully set out in detail. The instructions would have been in violation of article V, section 26 of the Constitution, and were, therefore, properly refused."
Furthermore, the presiding Judge charged the jury fully as to the duty resting upon a person attempting to cross a railroad track.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed. *Page 574