
    8149
    JOYNER v. ATLANTIC COAST LINE R. R. CO.
    Charge.—The Judge has the right to charge the law of a case in his own language, 'and where he fully discharges this duty he is not required to charge abstract propositions or sound propositions of law applicable. Even if it were error for the Judge to say the requests were on the facts it was not prejudicial, as he virtually charged ail of them, leaving the facts to the jury.
    Before Memminger, J-, Berkeley, March term, 1911.
    Affirmed.
    Action by M. Joyner against Atlantic Coast Bine Railroad Company. The charge on Circuit is:
    “This case presents for you gentlemen a very plain and ■simple issue, which you have.to solve on the facts which; are entirely for your determination.
    “The business of the Court is to charge you the principles of law by which you are to be governed in consideraing the case.
    “In this case there are but one or two principles of law involved, and they are easily explained.
    “The charge brought by Mr. Joyner against the railroad is that the railroad negligently killed his! horse. That they failed to exercise due care and that they brought about the death of bis horse and that they are responsible for the value of 'the horse, which he alleges1 is a hundred and fifty dollars.
    “The law requires of the railroad' company toward the horse the exércise of due care. To do that which a reasonably prudent and careful person would have done, and not to 'do that which a reasonably prudent and careful person would not have done, and it is 'all for’ you 'to say wh ether they have exercised due care, under all the facts in1 this case, toward the horse.
    
      “If they 'have failed, if the evidence satisfies- you by the greater weight that something should- have been dome, in the exercise of due -care 'by a -railroad company, which would have avoided the injury to the horse, then they hav-e failed in the duty which the law imposes- on them-, ail'd- the law gives you this rule by which you are to b-e governed. Where the killing of the stock has- been proved to- have 'been done by the railroad company, where it -has been proved' that the killing was- the re-sul-t of a collision with a- railroad train-, then 'the law raises the presumption -that the killing was caused- by 'the negligence of the railroad- company, and that presumption -exists until it is overcome by evidence showing that they did exercise due -ca-re.
    “If you have -the killing o-f the stock -by the railroad company and' nothing more, that would fix -the blame of the killing on the railroad company. If you have all the testimony, then you are to decide whether the railroad company has exercised du-e care.
    “If you decide that the railroad company has failed to exercise due care, and that they ought to- pay for the stock, then the question is- h-o-w much are they to- pay, and you go on and- take the testimony and fix the value of the stock, not to exceed the -hundred and fifty dollars asked for.
    “Y-ou s-ay either ‘We- find- for the defendant’ if the plaintiff has not made out his case, ‘W-e find .for the defendant,’ or if you decide that Mr. Joyner has made out his case by the greater weight of the testimony-, and is entitled to recover, then you will say, ‘We find f-o-r the plaintiff s-o much money,’ writing out the amount in words and not in figures, not to exceed a 'hundred- and fifty dollars. That is- the whole case, gentlemen, and it is f-o-r y-ou to decide. Either ‘We find for the pl-ain-tiff so much- money,’ or ‘We find for the defendant.’ You -sign your name at the bottom- of this blue paper with -the word foreman, and the date. I will give yo-u the one marked ‘Original.’ This- other paper is- the answer of the defendant railroad company. They come in and deny that they are responsible for the death of the horse, that is what is called the answer.
    “Mr. Cohen: About the requests to' charge, your Honor.
    “His Honor: They are all on the facts, hut I have no objection to reading them.
    
      First. “If the train was running at a lawful rate, and had the customary appliances, and force of train men, and the stock, -seen by the 'engineer, or might with due care have 'been seen, was so close that the train could not be stopped in time to avoid striking it, then the plaintiff can not recover.
    “That is correct as applied to- the case in which it was affirmed by our Supreme Court, but it is a question of fact for you to decide in this case, whether by the stopping of the train they could have avoided the injury, or whether by the exercise of. due care they could have avoided the injury to the horse.
    
      Second. “To excuse the company, on the ground that the killing was accidental, it is not enough to show that it was not intentional, it must be shown to have occurred unavoidably and without the least fault on the part -of the engineer.
    “That is correct.
    
      Third. “The jury must find for the plaintiff, unless the company by proof of the particular manner or circumstances under which the cattle were 'killed, rebut the presumption of negligence.
    “That is correct.
    
      Fourth. “The presumption of negligence is not rebutted by the mere production) of evidence on the part of the company, unless such evidence is sufficient to rebut this presumption, by making out affirmatively a case of accident. But if it is sufficient to rebut this presumption, the plaintiff can not recover and: your verdict must be for the defendant.
    “I charge you that those are all matters of fact for you gentlemen1 to settle in the light of the principles of law that you have been charged'.
    
      
      Fifth. “If the defendant’s 'evidence overthrows the prima facie, and malees1 out affirmatively a case of accident, the presumption is gone, and the plaintiff must fail-.
    “That is correct as an abstract proposition, and the facts are all for you to decide in this case. That casie which, this was cited from was decided long before the Constitution of 1895, which prohibited the Judge from charging a jury on the facts.
    “Take the record and go out and decide the case.”
    Defendant appeals on following exceptions':
    1. “Because the Judge erred in charging the jury as follows: ‘If they have failed, if the evidence satisfies, you by the greater weight that something- should have been done, in the exercise of due care by a railroad company, which would have avoided the injury to1 the horse, then1 they have failed in the duty which the law imposes on them, and the law gives you this rule by which you are to be governed. Where the killing- of the stock has been proved toi have been done by the railroad company, where it has been proved that the killing was the result of a collision with a railroad train, then the law raises the presumption that the killing was caused by the negligence of the railroad company, and that presumption exists until it is overcome by evidence showing that they did exercise due care.’
    “ ‘If you have the killing of the stock by the railroad company and nothing- more, that would fix the blame of the killing on the railroad company! If you have all the testimony, then you are to decide whether the railroad company lias exercised due care.’
    “The error assigned being that the complaint in this action, having alleged that the killing was negligent, the plaintiff should have been held to a proof of facts constituting negligence, and the law which raises a presumption of negligence from the mere fact of killing did not apply in this case.
    
      3.“Because the Judge erred ins ruling upon the defendant’s requests to charge, as follows: ‘They are all on the facts', hut I have no objection to reading them.’
    “The error assigned being that the requests to charge presented by the defendant were not on the facts-, but contained propositions of law applicable to- the case, and the remarks of -the Judge were prejudicial to- the defendant, in that the jury might infer therefrom that they were not to consider the requests- to- charge as- stating the law of the case to them.
    3. “Because the Judge -erred in ruling as follows-, upon the defendant’s first request to- charge-: ‘That' is- correct as applied to the -case in which it was affirmed by our- Supreme Court, but it is a question- of fact for you to decide in this case, whether by the stopping of the train- they could have avoided the injury, or whether -by the exercise of due care they could have avoided the injury- to the -horse.’
    “The error assigned being that such request did not embody a question of fact, but stated a proposition of law-applicable to the case. ■ ■
    4. “Because the Judge erred in ruling upon- defendant’s fourth request to charge as follows: T charge you that those' are all matters of fact for you gentlemen to settle in the light of the principles of law that you have been,charged.’
    “The error assigned being -that the proposition of-law requested by the defendant, did not embody a charge upon the facts, but was1 a- statement of law applicable to- the case.,
    5. “Because the Judge erred in ruling upon the d'efend-r ant’s fifth request to> charge as follows: • ‘That is correct as an abstract proposition1, and the facts are all- for you to decide in this case. That case which this- was cited from was, decided long before the Constitution of 189.5,- which . prohibited the Judge from charging' a jury on- the facts.’ ,-
    “The error assigned being -that the proposition requested, by the defendant, ■ was- not an abstract proposition, but- was applicable to the case, and was also a- charge not upon the facts, but a statement of the proposition of law.”
    
      Messrs. Simon Hyde and Octavus Cohen, for appellant,
    .cite: Rule in Danner’s case does not apply: 62 S. C. 332. This presumption must be rebutted: 24 S. C. 133; 30 S C. ■166; 26 S. C. 49.
    
      Messrs. B. /. Dennis and W. A. Holman, contra,
    cite: Presumption of negligence arises on proof of killing of stock: 82 S. C. 252.
    March 25, 1912.
   The opinion of the Court was delivered by

Mr. Justice Watts.

This action was -brought to recover damages for the alleged wrongful killing' of stock, the property -of plaintiff. The allegation of the complaint was the plaintiff owned and was- in possession) of a horse which casually and without the fault of the plaintiff strayed on the track of the defendant, and that the defendant by its agents and servants, not regarding its duty in that respect, so carelessly ran and managed a locomotive that the same ran against the horse and killed it.

.The defendant interposed a general denial, and a further plea that the injury to the horse was due to- the -sole negligence of the plaintiff, and in- a separate defense pleaded contributory negligence. Upon the trial of the case a verdict was rendered for the plaintiff.

Defendant appeals, and by five exceptions questions the correctness- of the Judge’s charge, and refusal to charge requests as asked for by the defendant. Det the Judge’s charge and defendant’s request to charge together with rh-e Judge's remarks thereon, and defendant’s exceptions be set out in' the report -of the case.

‘ As to the exceptions- Nos. 1, 2, and 3 of defendant’s request to charge, w-e think they were taken under a misapprehension, for we find the following at the close of his Honor’s charge: “Mr. Coheni: About the request to' charge, your Honor. His Honor: They are all on the facts, 'but I have no objection to reading- them. He then read them and after reading them said, ‘that is correct, as. applied to' the case ini which it was affirmed by our 'Supreme Court; but it is a question of fact for you to decide ini this' case, whether by the stopping of 'the train they could have avoided the injury, or whether by the exercise of due care they could have avoided the injury tO' the horse.” After reading over the 2d and 3d request he said, “That is correct.”

After reading the 4tb request he instructed' the jury that all matters of fact were for 'them1 to settle by the principles of law laid' down as they 'had been charged. By reference to bis charge it w-ill be seen that be had in bis own language fully instructed1 the jury as to the law in' the case, and subsequently charged the first and fourth requests1 of defendant, anld explicitly charged' the 2d and 3d requests of defendant.

As to the 5th request, he charged! it as correct. It is true he said, “that is true as an abstract proposition,” but he left the facts, for the jury to- decide.

An examination of the Judge’s charge as a whole will show that he fully charged the jury as to1 the law applicable to the case 'and left the facts to them. It is the duty of the Court to declare the law of the case and be has a right to do so in bis own language, and when he fully discharges this duty be is.not compelled' to charge any abstract questions of law, or even sound propicteitioins of law, applicable to the case if he has already covered tíre ground. Even if the Judge erred1 in saying the requests presented were on the facts, and not a proposition of law, it was not prejudicial, a.s he virtually charged them all, leaving the facts' for the jury. We think there was no error on part of the Circuit Judge.

T'he exceptions are technical, wanting in merit, and defendant was in no manner prejudiced by remarks of Circuit Judge. Exception® overruled.

Judgment affirmed.  