Carter v. Columbia & Greenville R. R.

Citations

• 19 S.C. 20
• 1883 S.C. LEXIS 50

Syllabus

<p>1. The defendant is entitled to a non-suit where there is a total failure of evidence to sustain the plaintiff's case; but if there is any testimony, the force and effect of which must be determined, the case should go to the jury-</p> <p>2. In action for damages for the negligent killing of a man, a motion for non-suit upon the ground that the evidence adduced showed contributory negligence by the deceased, cannot be granted.</p> <p>3. Negligence is the absence of due care, and must be proved by the party alleging it.</p> <p>4. A railroad company is not liable in damages for the death of a man caused by the explosion of a torpedo with which he intermeddled while walking-on the railroad track, and which had been placed there by the company as a danger signal to approaching- trains. '</p> <p>5. A proposition charged by the Circuit judge may be made a ground of exception, but a failure to charge can be assigned as error only when a request so to charge is made and refused.</p> <p>6. In refusing to charge that a man who walks upon a railroad track, except at a road crossing, does so at his peril, the Circuit judge committed no error.</p> <p>7. Nor was there error in refusing- to charge “ that if the deceased was upon the track of the defendant without lawful authority, and using it for his own convenience, he was a trespasser, and that the company was under no obligation to take precautions against possible injuries to trespassers.”</p> <p>8. Where there is negligence on the part of the defendant, if the deceased, by the exercise of ordinary care, could have avoided the injury, and did not, he is the author of his own injury and cannot recover.</p> <p>9. The judge is not called upon to separate a request to charge into parts, charging such as are sound, and rejecting such as are unsound. He may take it and consider it as a whole.</p> <p>10. Contributory negligence is a matter of defense, and the burden of proving it is with the defendant.</p> <p>11. In refusing to c