May 26, 1922. The opinion of the Court was delivered by The appellant in his argument makes the following statement of the issues involved in this appeal:
"This is an action for damages for personal injury sustained by plaintiff while making a coupling of two cars loaded with logs. The plaintiff was employed by defendant as fireman and switchman on what is known as the `makeup' train, the engine thereof being engaged in the making up of trains of cars loaded with logs in the woods to be transported by other engines over the tramroad or railroad of the defendant from the woods to the mill. The complaint alleges that the defendant is a corporation engaged in the manufacture of lumber. In connection with its sawmill the defendant operates a tramroad or railroad for its own use in transporting the logs from the woods to the mill. The jury found for the defendant, and, on plaintiff's motion, a new trial was granted by the Court on the ground *Page 167 that the Court had erred `in failing to charge the law set forth in Section 15, Art. 9, of the Constitution of 1895, and in regard to assumption of risk, and the Court further erred in charging the request of the defendant in conflict with said section of the Constitution, and in the general charge relating to such matters.' While there are five exceptions to the order granting a new trial, there are really but two questions involved: First, whether a request to charge can be withdrawn, and then failure to charge the law as therein requested be assigned as error on the part of the presiding Judge; and, second, whether or not an ordinary corporation, authorized under the laws of the State of South Carolina to engage in the manufacture of lumber, which in the conduct of its private business operates a logging railroad for the purpose of getting its timber from the woods to the mill, comes within the purview of Section 15, Art. 9, of the Constitution of 1895. From the order granting a new trial, defendant appeals."
In addition to this statement it is well to say that the defendant also carried freight for persons who lived along its line of railroad.
I. The first question to be determined is: Did his Honor make a mistake in charging that the defendant was not a railroad corporation within the meaning of Section 15 of Article 9 of the Constitution of this State. The record shows that the defendant was carrying on the business of a railroad corporation as to freight. The defendant is a foreign corporation, and it must be presumed that the business it was conducting was within its corporate powers. No valid reason has been suggested, and we know of none, to differentiate it from other railroad corporations in this respect. We agree with his Honor that there was error in holding that the defendant is not within the provision of Section 15 of Article 9. Appellant's first proposition cannot be sustained. *Page 168
II. His Honor was not in error in holding that he had the right to grant a new trial based on the error. It is true his Honor was misled into the error by the withdrawal of plaintiff's request to charge. The respondent who was responsible for the error could not, as a matter of right, demand a new trial. It was, however, within his Honor's discretion, when it appeared to him that there was error and prejudicial error in the case to grant a new trial. We do not see that there was an abuse of discretion. Here there was not only a failure to charge, but a positive charge that was erroneous. There was no error in granting a new trial, and the order granting a new trial is affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE MARION concur.