The judgment should be reversed for error in giving plaintiff's eighth request, which was, in part, as follows:
"The defendant who invokes the act of God as a defense has the burden of proving, not only that the act of God *Page 240 caused the injury, but that it was the entire cause of the injury, and such injury could not have been prevented by the exercise of diligence, prudence, and reasonable care by the defendant."
The burden is upon a servant, who alleges that he was injured by the negligence of his master and seeks to recover damages therefor, to prove the negligence alleged, and that it was the proximate cause of his injury. This rule is elementary, and it has been uniformly recognized and applied by this Court. In such cases, there is no presumption of negligence. 4 Labatt's Mas. Serv., sections 1599, 1603; 6 Thomp. Neg., sections 7695, 7698, 7719. At section 7698, the author says:
"Where the effect of the evidence is merely to establish that there were two independent causes, either one of which may have been the proximate cause of the injury, the burden is on the plaintiff to show that the cause for which the defendant is responsible was the one which produced the injury sought to be recovered for."
The contention of defendant that an alleged injury was caused by an act of God, or was an accident, is not an affirmative defense. Therefore, it may be proved under a general denial, for proof of the fact merely tends to disprove the allegation of negligence, and to rebut the plaintiff's evidence of negligence. The general rule is that, under a general denial, the defendant may introduce any evidence which merely tends to rebut the plaintiff's case. Heiden v. R. Co.,84 S.C. 119, 65 S.E. 987. In accordance with this principle, the Court held in Wilson v. Railway, 51 S.C. 79,28 S.E. 91, that, under a general denial, defendant could introduce evidence tending to show that the injury was caused by the negligence of a fellow servant of plaintiff; and, in Strickland v. Capital City Mills, 70 S.C. 211,49 S.E. 478, where defendant alleged in its answer that, if plaintiff was injured, as alleged, the injury was caused by his own negligence, and not that of defendant, and the Court *Page 241 instructed the jury that the burden of proving this allegation was on the defendant, this Court reversed the judgment, on the ground that it was not an affirmative defense, and that it was error to put the burden of proving it on defendant. To the same effect, see Kennedy v. Railway, 59 S.C. 535,38 S.E. 169, and Mitchiner v. Tel. Co., 70 S.C. 522,50 S.E. 190. Analogous in principle is State v. McDaniel,68 S.C. 318, 47 S.E. 384, 102 Am. St. Rep. 661, where this Court held that, under the plea of "not guilty," on indictment for murder, defendant could offer testimony tending to prove that the killing was an accident, and reversed the judgment for error in the instruction that it was an affirmative defense, and the burden of proving it was on defendant.
The instruction given in the case at bar applies in actions against carriers and bailees for hire for loss or damage to goods in their custody (Ferguson v. Railway, 91 S.C. 61,74 S.E. 129; Fleischman v. Railway, 76 S.C. 237,56 S.E. 974, 9 L.R.A. (N.S.) 519), for reasons of public policy, since the cause of loss or damage is peculiarly within their knowledge; and it would be difficult, if not impossible, for the owner to prove negligence. Therefore, the law raises a presumption of negligence in such cases. But there is no reason, and I have not been able to find any authority, for any such presumption in a case like this, where the plaintiff may be presumed to know as much about the cause of the injury as the defendant, or has equal means of ascertaining the cause of it.
Suppose the evidence was evenly balanced on the issue whether the injury was caused by defendant's negligence or the act of God, if the burden of proving that it was caused by defendant's negligence was on plaintiff, as I think it was, then the verdict should have been for defendant. On the other hand, if the burden was on defendant to prove that the sole cause of the injury was an act of God, as the jury were instructed, then the burden was put upon defendant to *Page 242 disprove negligence, and not upon the plaintiff to prove it, as the rule requires, and though the evidence was evenly balanced, the jury had to find for plaintiff. The instruction turned the rule upside down.
The opinion of MR. JUSTICE GAGE seems to me to be inconsistent in its holdings, for, further on, he says:
"The pleadings admit that Sloan met his death by atmospheric electricity, that is to say, by lightning. Thereout arose two signal issues of fact, the burden of proving whichrested on the plaintiff. They are: (1) Was the lightning conveyed along the transmission line to the bushings, through the wall of the power house, into Sloan's body; and (2)was that occasioned by the failure of the defendants to exercisedue care in the construction and maintenance of thetransmission lines?" (Italics added.)
The words italicized show that he recognizes the general rule that the burden is upon plaintiff to prove the negligence alleged, which is certainly at variance with the previous holding that the burden was on defendants to prove that the act of God was the sole cause of the injury, and "that there was no joinder to that of their own negligent act." It cannot be said that the error was nullified, or made harmless, by the general instruction that the burden was upon plaintiff to prove her case by the preponderance of evidence, because at the insistent request of plaintiff's attorney, it was repeated at the end of the charge with an emphasis that could not have failed to impress the jury as appears from the following colloquy between plaintiff's attorney and the Court:
"The Court: Now, as to contributory negligence, as far as proving contributory negligence, the burden of proof is on the party setting up, claiming contributory negligence, to make out that. Now, what is it, Mr. Evans? Mr. Evans: And also the assumption of risk, your Honor. The Court: And also the assumption of risk. Mr. Evans: When they set it up. And also when they set up the act of God, they must prove that it was the sole cause of it, *Page 243 and no human agency. The Court: Mr. Evans, I charged that, and it was carefully framed, and that was one of your main requests to charge. Mr. Evans: Yes, sir; it was one of my main requests. The Court: Didn't I charge it? Mr. Evans: Thank you. I have nothing more to say. The Court: I charged it."
I dissent also from the conclusion reached as to the amount of unnecessary printing in the "case," which shall be charged to the respondent. If this Court has to examine microscopically every "case" in which unnecessary matter is set forth, contrary to the rules of the Court, to determine with exact precision how many pages of the "case" shall be charged to the parties respectively, its labors will be increased vastly more than merely reading the unnecessary matter. The application of the rule will become more burdensome than the evil it was intended to remedy. When there is a culpable and substantial failure to comply with the rule, the party responsible for it should be penalized by being required to pay all the costs of printing the "case."
In all other respects I concur in the opinion of MR. JUSTICE GAGE.
MR. JUSTICE FRASER concurs in the dissenting opinion delivered by MR. JUSTICE HYDRICK.