The judgment appealed from is the second in the case for the plaintiff. See 29 S. C., 132. I concur in the result.
*520Mr. Justice McIver.There are three general questions presented in this case: 1st. Whether the motion to dismiss the appeal should he granted upon the ground that the notice of intention to appeal was not given in the prescribed time. 2nd. Whether the Circuit Judge erred in declining to take jurisdiction of the motion for a new trial on the minutes. 3rd. Whether the exceptions to the judge’s charge can be sustained.
As to the first question, while I concur in the result reached by the Chief Justice, I cannot assent to the grounds upon which he rests his conclusion. Under the statutes as they now stand, I am unable to find any law prescribing the time within which notice of intention to appeal shall be given, in a ease tried by a jury. This may be, and doubtless is, a clear case of easus omissus, but I see no authority for this court to supply such omission. On the contrary, while the Code as originally adopted, and as it now stands, contained various provisions authorizing this court or the justices thereof, or in some cases the judges of the Circuit Court, to extend the time for doing various acts, or to relieve parties failing to take certain required steps necessary to perfect an appeal, such provisions were always accompanied with an exception as to the time for giving notice of appeal. See sections 353 and 420 of the Code as originally adopted, and sections 339, 345, 348, 349, of the present Code. So that it seems to me that the legislature has been careful to avoid delegating to this court any authority whatever in regard to regulating the time within which notice of appeal must be given, and that we must look alone to the statutes for the law upon that subject; and if, in a given case, we are unable to find any statutory provision prescribing the time, this court has no authority to dismiss an appeal in such case, on the ground that the notice has not been given in time. The only statutory provisions upon this particular matter are those found in section 345 of the present Code, which is divided into various subdivisions, of which only the first two are pertinent to the present inquiry. The first relates only to exceptions for the purposes of appeal in a specified class of cases, to wit, “cases tried before a jury,” and makes no - reference whatever to the notice of appeal. But the second deals only with an entirely different class of cases, to wit, those “not tried before a *521jury,” and not only prescribes the time within which the notice of appeal shall be given in such cases, but also the time within which the “Case” with the exceptions shall be served. It seems to me therefore that there is a clear omission to prescribe any time within which a notice of appeal shall be given in a ease tried by a jury.
I do not think it will do to say that the language of the second subdivision is broad enough to cover both classes of cases. The language is: “In every appeal to the Supreme Court from an order, decree, or judgment, or other matter not tried before a jury, from which an appeal may be taken to the Supreme Court, the appellant or his attorney shall,” &c. Now, if our attention is limited to the opening words of the subdivision : “In every appeal to the Supreme Court,” the language certainly would be broad enough to cover an appeal in any case, the words “every appeal” would undoubtedly cover an appeal in any kind of a ease. But it would be a singular rule of construction to read these opening words without regard to the qualification annexed to them. On the contrary, we are bound by every sound rule of construction to read them in connection with the qualification annexed. So read, it seems to me that the plain meaning is, that in every appeal in the class of cases mentioned, the requirements of the subdivision must be complied with, and there is no warrant whatever for exacting such requirements in any cases not mentioned. The distinction between cases tried by a jury and those not tried by a jury is marked, and is fully recognized in the Code as well as in practice. Hence where we find special statutory provision, which in express terms are made applicable to one of these classes of cases, and other statutory provisions which in like terms are made applicable to the other, I do not see by what authority we can apply the latter to the former or vice versa.
It is said, however, that it could not have been the intention to repeal the entire act of 1878 (16 Stat., 698), by the adoption of section 345 of the Code, as it now stands, but that these two acts must be read together, and so reading them, the second section of the act of 1878, from which the second subdivision of section 345 was taken, would be sufficient to cover a case tried by a *522jury, as well as a case not tried by a jury. But I do not see how it is possible to sustain such a position in face of the express declaration found in section 449 that “all statutory provisions inconsistent with this Code of Procedure are repealed;” for certainly the statutory provision contained in the second section of the act of 1878, whereby its provisions are made applicable to an appeal in all classes of cases, is' wholly inconsistent with section 345 of the Code, which expressly limits the application of such provisions to a particular class of cases, to wit, those not tried by a jury. Indeed, I do not see how the legislature could have more clearly indicated their intention to limit the application of the provisions of the second section of the act of 1878 to the specified class of cases, than by the fact that when incorporating the provisions of the second section of that act into the new Code, as subdivision 2 of section 345, they were careful to insert the words, “not tried before a jury,” which could have no other effect than to limit the provisions of such subdivision to that class of cases. They thus unmistakably declared their unwillingness that such provisions should any longer apply to all classes of cases, and their intention that from that time forward they should be limited to the particular class specified.
It may be said that rule 50 of the Circuit Court requires that the notice of appeal shall be given within ten days after the rising of the court. But without repeating what has hereinbefore been intimated, that this court has no power to fix by rule the time for giving notice of appeal, it is quite sufficient to say that even under that rule the present appeal eould not be dismissed. It provides that, “In every appeal to the Supreme Gourt from matter appealable, the appellant, or his attorney, shall, within ten days after written notice of the filing of such matter appeal-able, or if filed within term time, within ten days after the rising of the Circuit Circuit, give written notice,” &c. Now, as thejudgment in this case was not filed within term time, and the notice of appeal was given within ten days after notice of the filing or entry of the judgment, the appellant is within the rule.
In the absence, therefore, of any law prescribing the time within which notice of appeal shall be given in a ease tried by a jury, as this was, I do not think the appeal can be dismissed on the *523ground that notice of appeal was not given within ten days after the rising of the court at which the case was tried. It may be, and doubtless is, the fact that this is the result of an oversight, which it is not difficult to account for. In section 357 of the Code, as originally adopted, it was provided that an appeal under subdivision two of section eleven must be taken within sixty days after written notice of the order shall have been given to the party appealing, and other appeals within two years (afterwards reduced to three months by the act of 1873, 15 Stat., 500) after the judgment shall be perfected by filing the judgment roll; and in section 353 it was prescribed that the appeal must be taken by the service of a notice in writing on the adverse party and on the clerk. Thus the law stood until the passage of the act of 1878, above referred to, which this court held, in Scurry v. Coleman (14 S. C., 166), covered the whole subject of appeals, at least so far as related to the time within which, and the manner by which, appeals must be taken, though not relating to the matter from which an appeal might be taken. Hyatt v. McBurney, 17 S. C., 143.
Thus the act of 1878, providing, as it did, that in every appeal notice — not written notice — must be given within, ten daj'S, either from the rising of the court or from the receipt of written notice of the filing of the matter appealed from, according as the same may have been made or rendered in term time or in vacation, superseded the provisions of section 358 requiring the notice to be in writing, as well as the provisions of section 357 prescribing the times within which appeals must be taken. While the law thus stood, it was held in Bank v. Gary (14 S. C., 571), that a verbal notice of appeal might be sufficient, as the act of 1878, covering the whole subject of the time and manner of taking appeals, did not require the notice to be in writing; and for the same reason it was held in Crane, Boylston & Co. v. Moses (13 S. C., 43), that the notice of appeal need no longer be served on the clerk. But when the present Code was adopted, and the second section of the act of 1878, with a very important amendment restricting its operation to a certain class of cases, to wit, those “not tried before a jury,” was incorporated therein as subdivision 2 of section 345, and the other class, to wit, those “tried *524before a jury,” was left unprovided for, so far as prescribing a time within which notice of appeal must be given in that class of cases, though the first subdivision does fix the time within which “exceptions for the purpose of appeal” must be taken and served in cases of that class. So by the insertion in section 339 of the present Code of that provision in section 357 of the old Code, requiring all notices of appeal to be in writing, a verbal notice would now no longer be sufficient.
But in addition to this, inasmuch as there is no law, or even rule of court, so far as I know, prescribing any particular form in which notice of appeal shall be given, except that it must be in writing, I do not see why the notice contained in the letter of 8th December, 1888, from appellant’s attorney to respondent’s attorney, covering, as it did, the exceptions, which was served by mailing the same within ten days from the rising of the court, should not be regarded as sufficient.
It seems to me, therefore, that in no view of the case can the motion to dismiss the appeal be granted upon the ground of a failure to serve notice thereof within the prescribed time.
As to the second general question, I concur in the conclusion reached by the Chief Justice. It seems to me that the provisions of sections 286 and 287, when considered together, require that a motion for a new trial on the minutes must be heard and decided at the same term at which the case was originally tried, and therefore after the expiration of the term the Circuit Judge has no jurisdiction to hear such a motion. This may be, and doubtless would be, in some cases a very unfortunate result, and tend to the defeat rather than the promotion of the ends of justice. If a case is tried in the last hours of the term, it is difficult to see how it would be possible for a motion for a new trial on the minutes of the judge to “be heard and decided at the same term;” but it is sufficient for us to say, Ita lex scripta est. If a remedy is needed, this court is not competent to supply it, and it must be sought from another department of the government.
Upon the remaining general question as to the merits, I cannot concur in the conclusions reached by the Chief Justice. To maintain this action, it was necessary for the plaintiff not only to show negligence on the part of the defendant, but also that the *525injury complained of was the result of such negligence, Glenn v. Railroad Company (21 S. C., 466), and this doctrine is recognized in the recent case of White v. Railroad Company. This well settled and most reasonable doctrine was, it seems to me, entirely disregarded when the Circuit Judge, in speaking of the regulation which the defendant company had adopted as to the rate of speed at which its trains should be run, instructed the jury as follows: “If the rule was not reasonable, or if it was not being carried out in the same way that a reasonable and prudent man would have taken the train in order to prevent an accident, then you ought to find a verdict for the plaintiff,” as it ignored the other essential element, that the injury complained of was the result of such negligence, either in adopting or carrying out such regulation. Both reason and authority unite in declaring that no matter what amount of negligence may be shown, the plaintiff is not entitled to a verdict until it is also shown that such negligence had some agency in producing the injury complained of; and as was said in White s Case, supra, the failure to thus qualify the instruction may have misled the jury. I am unable to perceive how this, to my mind, manifest error can be rectified or explained away by the rule in Danner’s Case. That rule is no doubt most potent and efficacious in supplying deficiencies in the proof of negligence, but I do not see how it can be so extended as to correct errors in charging the jury.
I think also that the Circuit Judge erred in declining to charge the request as set out in the sixth exception. There does not seem to be any controversy as to the correctness of the legal proposition contained in that request, and since the case of Joyner v. Railway Company (26 S. C., 49), and the cases therein cited, followed by the very recent case of Harley v. Eutawville Railroad Co., ante 151, there could scarcely be a question as to that point. . Nor does it appear that the proposition contained in the request was inapplicable to the case. But it is said that the request was informally submitted, “and the undisputed legal proposition having been fully stated in the hearing of the jury, it seemed to the judge only necessary to .call the attention of the jury to the existence of the stock law, and their duty to consider it in connection with the question of negligence, which was done.”- On *526turning to the charge as set out in the “Case,” we find that the only allusion to the stock law was in these words: “Well, now, gentlemen, you remember that the stock law is in existence, and the fact that the railroad company have such facilities as you know they have for the running and regulation of their trains, was that rule [referring to the regulation of the rate of speed] a reasonable one, that this train should have been running at the rate of speed that it was said to have been running under the circumstances under which it was running ?”
It thus appears that the refusal or omission to charge an undisputed legal proposition, applicable to the case, is rested upon three grounds : 1st. That the request was informally presented. 2nd. That the proposition had been fully stated in the hearing of the jury. 3rd. That the attention of the jury was in fact called “to the existence of the stock law, and their duty to consider it in connection with the question of negligence.”
1st. As to the alleged informality of the request. It is stated in the “Case” that defendant’s counsel, in the beginning of his argument, read the syllabus of Joyner's Case, supra, from the book, and handed it to the judge with an oral request to charge, “That much less care is required of railroad companies in providing against stock on its track since the passage of the stock law than before its passage.” Turning to the book we find this language in the syllabus of that case, and therefore it cannot be denied that the request was submitted to the judge, not orally, but in print. True, it was not in writing, as required by the rule of court, and surely it cannot be regarded as an informality that the request as handed up to the judge was printed instead of being written. I cannot think that such informality, if such it be, would justify a disregard of the request.
2nd. Could the request be properly disregarded on the ground that the proposition therein contained had been fully stated, without dispute, in the hearing of the jury ? I think not. The fact that the proposition had been stated in the hearing of the jury without dispute goes for nothing. What was wanted, and what the party submitting the request was entitled to have, provided it was legally correct, was the imprimatur of the judge. If it had been repeated by his counsel many times in the hearing of *527the jury, without denial from the other side, the party would still ■have the right to demand that the judge, from whom alone the jury are authorized to receive the law, should explicitly instruct the jury as to any legal proposition applicable to the case to which his attention has been called by a request to charge.
3rd. Was the jury, in fact, instructed as requested ? It seems to me very plain, from the quotation made from the charge above, that they were not. While it is quite true that a Circuit Judge is not bound to follow the phraseology in which a request is couched, yet I think he is bound to instruct the jury as to the correctness or incorrectness of the legal proposition contained in the request, provided always that it is applicable to the case, as to which there is no question here. The only allusion to the stock law which can be found in the charge is a mere passing one, confining its operation and effect entirely to the regulation of the speed of the trains, without any regard whatever to its operation in excusing any want of care in any other respect. I think, therefore, that there was error in declining or omitting to charge the substance, at least, of the undoubted legal proposition ■clearly applicable to the case, as stated in the request submitted.
Judgment affirmed.