
    J. M. Boland vs. The Greenville and Columbia Railroad Company.
    
      tí'.iryman — Practice—Witness—Release—Acquittance— New Trial.
    
    In a case of necessity, as when the Coroner of the district is a member of the jury, and is unexpectedly required to hold an inquest, the presiding Judge may authorize him to withdraw during the trial of a cause, and direct another juror, who had heard the testimony, to be substituted in his place, and such act of the presiding Judge is no ground for a new trial, especially where no objection was interposed at the time.
    A paper, not under seal, in the nature of an acquittance or acknowledgment of satisfaction : Held, sufficient to make a witness competent, who was liable over to defendant, in case plaintiff should recover.
    That a juryman had an interest in the cause, is no ground for a new trial.
    BEFORE WARDLAW, J., AT NEWBERRY, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ Case for the killing of a man slave of the plaintiff, through the negligence of the defendants’ agents.
    “ It appeared that a young negro man, the only one which the plaintiff owned, was on Christmas day, 1856, run over by a freight train going down on the track of the Greenville and Columbia Bailroad, about two miles below Frog Level, between two and three o’clock in the afternoon ; that the negro had a flask with some whiskey in it in his bucket, and was probably lying drunk and asleep when he was struck by the engine ; that the place where he was struck was near the tipper end of a gentle curve in the road, and about the middle of a cut, which is about one hundred yards long, and at that place three or four feet deep, the grade there and for half a mile above, being slightly descending, and at a short distance below, commencing to ascend; that above the place the line of the track is entirely straight for four hundred yards, and beyond that, is to the distance of five hundred and seventy-five yards, so nearly straight, that persons who afterwards made the experiment, could stand on the track five hundred and seventy-five yards off and see a hat, set down at the place of killing; and that the negro cut nearly in two, just above the legs, lived less than an hour afterwards, and no person besides the employees of the Railroad Company who were on the freight train that killed him, were present at the occurrence.
    “ The plaintiff stopped, having shown what precedes and also having adduced the testimony of a witness who swore that when this freight train stopped at Erog Level, he saw the runner of it go into a shop there where liquor and water were both kept, and drink something out of a glass at the counter. A motion made on the part of the defendant for a nonsuit was refused. The defendant offered the runner and conductor of the freight train ; the plaintiff objected upon the ground' of interest arising from their liability over to the Company. A paper, called a release, was exhibited, which had, in presence of the Court, been signed by the President and Secretary of the Company; but it was not sealed. Attention having been directed to this deficiency, the Secretary brought and affixed to the paper a large wafer covered with paper, upon which, he said, the impression had been made by the seal of the Company, but no words were written certifying that the seal of the Company was 'affixed. Another instrument, in the nature of an acquittance or acknowledgment of satisfaction, was then subscribed by the President and Secretary, and both instruments on the same paper were delivered to the runner and conductor. They were then admitted as witnesses.
    
      “ They testified as follows: The freight train left Columbia that morning, went to the workshops above Newberry, and was returning downwards about three quarters of an hour after time; it stopped on return only three or four minutes at Erog Level; the runner went round his train there and adjusted something, but did not go into Spence’s; on the train, besides the runner and conductor, were a white wood-passer, (who has left the service of the Company and gone to parts unknown,) a negro fireman and two negro laborers; the train consisted of eight cars loaded with cotton, besides the engine and tender; after leaving Erog Level the speed of a freight train upon a good road was attained, the average being fifteen miles an hour; and with such speed and such grade as was this, the means at command, (there being only one brake on a freight train.) could not effect a stop under three or four hundred yards; the runner was entirely sober; he was sitting on his box, the conductor on the fireman’s box and the other hands were at their proper places; a watchful lookout was kept, and not a word of conversation was going on ; the conductor cried “ hold on — somebody on the track” —the runner gave the signal, the brake was put down, and the engine reversed; the distance to the body on the track was then, they supposed, one hundred to one hundred and fifty yards from the engine. As they neared, the whistle was blown, and both cried out at the top of their voices; the negro did not move; he was lying on his side across the left hand rail, with his body curved, the head outside, and the feet between the rails ; the train passed over him, and stopped when the hindmost car had gone thirty or forty feet beyond. Everything which could have been done by persons on the train was done to avoid the catastrophe. By leaning over to one side the runner might have seen the body at a much greater distance, if he had known it was there, but it was obscured by the bank of the cut, was entirely still, and was not expected in so strange a situation.
    “ A third witness, a carpenter on the road, stationed at Erog Level, confirmed the statement that the runner did not leave bis train at that place on tbe downward trip that day; and the head man at the workshops testified that he was a sober, experienced, careful runner, who has been continued in the employment of the company.
    “ In argument it was contended for the plaintiff that the case was to be governed by the presumption of negligence, Avhich was applied in the cases of Danner, 4 Rich. 329, and Murray, 10 Rich. 227. I held, that when a reasonable human being was hurt, and by his own imprudence had essentially contributed to produce the result, the presumption spoken of was not applicable; and although care, proportional to the dangerous nature of the machinery which they used, was always required of the agents of the Company, and should be exerted to avoid, if possible, the doing of hurt to a human being who exposed himself to danger, a plaintiff who sought to recover damages, for a hurt received under such circumstances, should show that such care was wanting.
    “I submitted the facts to the jury under these instructions, and a verdict for the defendants was rendered.
    “When the first witness of the plaintiff was under examination, the Coroner of the District, who happened to be on the jury, was needed to hold an inquest overa person that had just died by violence near the Court House. I directed the first supernumerary juror to be called. He was at hand, and had listened to all that had been said in the case. I caused him to be presented to tbe plaintiff’s counsel, and asked if there was any objection to him. I was answered that there was no objection to the supernumerary juror, but consent to the withdrawal of the Coroner was not giyen. I directed the coroner to withdraw, and the supernumerary juror to be sworn in his place. I did not suppose that there was any dissatisfaction on the part of the plaintiff, and do not now conceive that in this there is any just ground of complaint.
    “ The ground of appeal concerning jurors being stockholders in the Company, was handed to me, and accepted by me a week after the trial. I know nothing of the matter stated in it.”
    The plaintiff appealed, and now moved this Court for a new trial upon the grounds :
    1. Because his Honor erred in removing one of the jurors from the box, and substituting another in his place after the trial had progressed some time, without consent of plaintiff.
    2. Because his Honor erred in permitting the conductor and engineer who were on the train that killed the negro in question in this case, to be sworn and their testimony taken, when the release and discharge of said witnesses from all liabilities for the killing of said negro was only signed by the President and Secretary of said Company, without the corporate seal and without any evidence that their act in this particular, was authorized by either the Board of Directors or the Company.
    3. Because his Honor erred in ruling that he would not look behind the acts of the President or Secretary of the said Company, but would presume that their acts were authorized by the Company, notwithstanding the circumstances of the case showed clearly that they were not authorized to act in this matter, and they did not even pretend that they were authorized so to act, much less show any evidence to that effect.
    
      4. Because his Honor erred in charging the jury, that in this case the onus of showing negligence on the part of the Company rested on the plaintiff.
    5. Because his Honor should have charged the jury that no matter what may have been the plaintiff’s fault in this case, it did not exonerate the defendants from proper diligence and attention on the part of the agents of the Company which they did not show.
    6. Because the verdict of the jury is not sustained by the evidence which establishes a clear case of negligence on the part of the Company.
    7. Because some of the jurors who decided on this case were Stockholders in the Greenville and Columbia Railroad Company, which fact was not known to the plaintiff or his attorney until after the case was decided. ■
    
      Jones, Williams, for appellant.
    1. The Court has no right to remove a juror in the midst of the trial of a case without the consent of the parties.
    2. The agents of the Company not competent witnesses without a release, which was not legally executed in this case. Gas Light Go. vs. City G. of Charleston, 9 Rich. 342.
    3. To excuse the Company, the killing must be shown to have occurred unavoidably and without the least fault, on the part of the agents of the Company. Danner vs S. G. R. R. Go., 4 Rich. 329 ; Murray vs. S. O. R. R. Go., 10 Rich., 227 ; Davies vs. Mann, 10 Meeson & Welsby, 515.
    4. No person should be allowed to sit as a juror on a case in which he was interested.
    
      Garlington, contra.
   The opinion of the Court was delivered by

Withers, J.

It is a ground of appeal that after the trial was entered upon, the Coroner of the District, who was of the jury, was withdrawn and another substituted in his place.

The facts were, that while the first witness was under examination, it was made known to the Court, that a death had occurred by means of a homicide committed in the vicinity of the Court House, and the Coroner, who was a member of the jury to which this case had been committed, was needed to render official service in that exigency. Thereupon the presiding Judge caused to be presented to the counsel a supernumerary who had heard all that had been said in the cause, and, on inquiry, was answered, that there was no objection to him.

This ground of appeal rests upon the sole fact, that the consent of the plaintiff’s counsel was not formally obtained to the withdrawal of the Coroner, though no express objection was made to that; and the case of Greer v. Norville, 3 Hill, 262, is relied on for authority.

There is a manifest diversity between the grounds on which that case and the present rest. The juryman withdrawn in that case was objected to by the plaintiffs’ counsel on the allegation that he was inimical to him, the counsel, and he desired his withdrawal — the opposing counsel objected to it — the juryman said nothing, and the Judge, hearing he was Tax Collector, (but it does not appear he was engaged, then in the duties of his office,) gave him leave to withdraw, and he did so. It was held to- have been erroneous.

In the opinion delivered, much is said about the right of a juryman, not disqualified, to serve, and stress is laid upon the conception, that in the case before the Court, and such as resembled it, the right of a juryman might be invaded. Importance is given to the distinction between a juryman requesting discharge and one removed or rather driven to withdraw, without such request. Various illustrations are presented of the idea intended to be advanced, and it is added, “after a trial has commenced and the jury is charged with the case, no juror can withdraw except from necessity, the consent of the parties, or the permission of the law; as where a juryman is taken ill, is withdrawn to make a mistrial, or where the term has expired before the termination of the case.” It would be dangerous to hold, that the examples put, of necessity, or what is called the permission of the law, were exhaustive of the subjects. The illness of a juryman himself would hardly present a greater necessity, or be more disqualifying as to a patient and sedate consideration of evidence, than the illness of his wife or child, or other domestic casuality. Again, it might turn out that the progress of the trial for the first time disclosed a clear and disqualifying interest of a juryman in the cause. If another were present and heard all the evidence, we see no reason to hold that such circumstance should not furnish as valid a ground as any other to substitute a supernumerary.

We think it would not be straining the truth to say that there was a sufficient legal necessity in this case to justify what was done, if it so appeared to the Circuit Judge. The coroner alone could hold the inquest which was necessary. It seems to be a mistake to suppose that a magistrate could have done so; for he is so authorized only, when the coroner is “ sick, or absent, or at a greater distance than fifteen miles from the proper place for such inquiry, or where the office is vacant,” Act of Assembly, 1839, 11 Stat. 23. Neither of such contingencies existed in the present instance.

In addition to all this, the presiding Judge had no reason to suppose, and he, in fact, reports that he did not suppose, either party had any objection to the substitution ; and it is manifest that the juryman withdrawn, did not retire unwillingly. At the time of the discharge of the coroner, no one could foresee, had he been retained, how long the inquest might have been postponed.

It thus appears, we think, that the case from 3 Hill and the present, differ in the substratum, and the former does not furnish a ruling authority for the latter.

The second ground relates to the competency of the runner and conductor of the freight train which killed the negro, the subject of this suit. The first paper presented by the President and Secretary of the Eailroad Company was not a release, because though there was a seal to it, the same was not made for that paper, the seal was not accessible to make it, nor was it recited in the paper that it was executed under the seal of the Corporation. Another instrument, on the same paper, was then executed by the President and Secretary, and both handed to the witnesses. The last instrument was an acknowledgment of satisfaction with the conduct of the witnesses in the transaction which produced the death of the negro, and stipulated an acquittance of them of all liability over, to the Company therefor. No seal was attached. The witnesses were -then sworn and examined.

This last paper (supposing there was no virtue in the first) was sufficient to render the witnesses competent. Whether it could be pleaded as accord and satisfaction is not the necessary and exclusive test. If the instrument was binding upon the Corporation, no recovery could be had against the witnesses in the face of the agreement they held when offered as evidence. The argument appears to concede this, but urges that it was not binding on the corporation either because it was not ratified and authenticated by the corporate seal; or, if that could be dispensed with, yet by the Charter (Sec. 21, 11 Stat. 330,) the President and Directors only could execute such a paper as a valid instrument. By the charter as cited,- the President and Directors (whose style is, “ The Direction,”) have power “ to make all contracts and agreements in behalf of the Company, and to do and perform all other lawful acts and deeds, which, by the by-laws of the corporation, they may be authorized and required to do and perform; and the acts or contracts of the Direction, authorized," (perhaps authenticated may have- been meant) by the signatures of the President and Secretary, shall be binding on the Company, without seal." Not merely was the act or agreement in question “ authorized” by such signatures but the President and Secretary performed the act, made the agreement, directly and in person; and, under the words cf the charter above cited, it cannot be doubted, that what they did was obligatory on the Company. This supersedes all occasion to consider when a corporation must act by and under its seal, and what proof of the seal the law may in general demand.

The seventh and last ground is met by the recent decision of Josey v. The Wilmington and M. B. B. Co., and is not pressed. The residue of the grounds are answered by the verdict of the jury on the facts, or by the case of Richardson v. The Wilmington and M. R. Road Co., and the previous cases upon which that rested.

As to the rule touching the mere presumption of negligence, or the question upon which party is the onus of making proof touching negligence, it is of very little practical importance in this case, because the evidence placed the inquiry on grounds far in advance of mere presumption, for all the facts that bore upon the matter were before the jury ; and the , plaintiff had the benefit of the appropriate rule, “ that care proportionate to the dangerous nature of the machinery which they used was always required of the agents of the Company, and should be exerted to avoid, if possible, the doing of hurt to a human being who exposed himself to danger.”

We believe the plaintiff has had the law properly expounded, and he must endure a defeat upon the facts before the jury-

A new trial is, therefore, refused.

Wardlaw, Glover and Munro, JJ., concurred.

O’Neall and Whitner, JJ., Directors of the Company, gave no opinion.

Motion dismissed.  