Maryland Fertilizing and Manufacturing Company v. Newman.

Am. Rep. 356, and Witherspoon v. Musselman, 14 Bush. 214; s. c., 29 Am. Rep. 404. But to declare such stipulation void, in order to maintain the negotiable character of the note, is certainly a strong thing for the court to do, unless it clearly contravened some established principle of law. Parties have the right to make their contracts in what form they please, provided they consist with the law of the land; and it is the duty of the courts so to construe them, if possible, as to maintain them in their integrity and entirety. While the instrument under consideration may not be a valid negotiable promissory note, it does not by any means follow that it is not a valid contract of another description.

99

In the case of Smith v. Nightingale, 2 Stark. N. P. Cas. 375, by the instrument declared on the party promised to pay a sum certain, "and also all other sums that should be found to be due ; and it was held, that the instrument could not be declared on as a promissory note, even for the sum certain, and Lord ELLENBOROUGH said: "The instrument is too indefinite to be considered as a promissory note, for it contains a promise to pay interest for a sum not specified, and not otherwise ascertained than by reference to the defendant's books; and since the whole constitutes one entire promise, it cannot be divided into parts." Byles on Bills, 70. And to the same effect is the case of Ayrez v. Fearnsides, 4 M. & W. 168. Here all the terms of the instrument have been treated as an entire promise, and so declared on by the plaintiff, suing as indorsee of the note.

The judgment of the court below must be affirmed; but as the plaintiff may desire to amend, and to declare on the special agree ment as assignee thereof, we shall remand the cause to that end. Judgment affirmed, and cause remanded.

VOL. XLV-95

CASES

SUPREME COURT

or

SOUTH CAROLINA.

CARTER V. COLUMBIA AND GREENVILLE RAILROAD COMPANY.

(19 8. C. 20.)

Negligence-duty toward trespasser.

A railroad company is not liable for the death of one, who while walking on its track without right, intermeddled with a torpedo which had been placed there as a danger signal, and was killed by its explosion.

A

CTION for death of plaintiff's intestate by negligence. The opinion states the case. The plaintiff had judgment below.

Conner & Cheves, for appellant.

Abney & Abney, contra.

SIMPSON, C. J. The plaintiff's intestate, while walking on the track of defendant's railroad, picked up a small torpedo which he saw lying on the track. While he was examining this instrument (the character of which it seems was wholly unknown to him) it exploded, causing his death almost instantly. This action was brought by the plaintiff, his administrator, to recover damages, for the benefit of himself and of his wife, the father and mother of the deceased. The basis of the action is negligence on the part of the

Carter v. Columbia and Greenville Railroad Company.

defendant, and this is charged in the complaint as follows, to-wit: "That defendant wrongfully, neglectfully and carelessly placed on their track an explosive and dangerous instrument, commonly called a torpedo, and wrongfully, neglectfully and defaultingly left the torpedo on the track etc.

The testimony of the plaintiff showed that the torpedo had been placed on the track on the morning of November 5th, 1881, the day on which the accident occurred, as a danger signal to guard against collisions, and in accordance with the rules of the company prescribing and regulating such matters; that the deceased, with another person, who were on their way to Columbia from some point above, in order to save distance had left the highway, and was on the track at a point where, for years all persons who desired to do so had been accustomed to walk the track or along a path on its margin; that at this point he discovered this torpedo, when he picked it up, saying to his companion, "We had better keep this, it might have money in it; that the deceased had two axes on his shoulder, and while his companion was looking the other way an explosion took place, the deceased falling with his head outside the rail, and one of the axes just in front of him. The companion was unable to say whether the deceased was kneeling down examining the torpedo with his axe, or how or why the explosion took place.

Upon the close of this testimony the defendant moved for a nonsuit on the ground of want of evidence to sustain plaintiff's alleged case because first there was no testimony to support the charge of negligence; and second, even if there was, yet plaintiff's testimony showed contributory negligence by the deceased; and therefore the alleged cause of action was wholly without foundation in evidence. This motion was refused, and the trial proceeded to a conclusion, the jury rendering a verdict for the plaintiff.

The defendant requested the presiding judge to charge certain legal propositions found below, which he declined, and the defendant has appealed, assigning error because the judge refused the motion for nonsuit, and also declined to charge the propositions requested. These propositions were as follows:

1. "That the use of a railroad track is for its owners, and those acting under them, its employees; and except at crossings where the public have a right of way, the man who walks upon a railroad track does so at his peril. If deceased was upon the track of the defendant without lawful authority and using it simply for his own

Carter v. Columbia and Greenville Railroad Company

convenience, he was a trespasser, and the company was under no obligation to take precautions against possible injuries to trespassers.

2. That to entitle the plaintiff to recover he must prove negligence in the defendant, and no want of ordinary care on the part of the deceased; and even when there is negligence on the part of the defendant, if the deceased, by the exercise of ordinary care, could have avoided injury, and did not, he is the author of his own wrong and cannot recover.

3. "That if the jury believe that the accident was caused by the effort of the deceased to open the torpedo, then he was the author of his own injury and cannot recover, and the verdict must be for the defendant."

The defendant also excepted "because his honor did instruct the jury that want of due care upon the one side does not relieve the other;' and also if plaintiff exercised due care, and defendant did not, he is entitled to recover; if defendant exercised due care, and plaintiff did not, he is not entitled to recover,' and failed to instruct the jury that if there was mutual negligence the plaintiff could not recover.

2. "Because his honor, in the final clause of his charge, in effect limited the jury to the two issues only, of negligence on the part of the defendant and no negligence on the part of the deceased on the one hand, and of no negligence upon the part of the defendant on the other, and did not instruct the jury that there was a third issue, and that if there was negligence by the defendant, but that nevertheless the deceased, by the exercise of ordinary care, could have avoided the injury, then that the plaintiff was not entitled to recover."

We will consider first the exceptions founded upon the refusal of his honor to grant the motion of nonsuit. A nonsuit is not only proper but it is the legal right of the defendant where there is a total failure of evidence to sustain the plaintiff's case, as alleged in the complaint. If the plaintiff has introduced any testimony, the force and effect of which has to be considered, then the case must go to the jury, because under our system of judicature the jury is the only constitutional tribunal authorized to weigh testimony. But in every case there may be a preliminary question, which is addressed to the judge, to-wit: Has any testimony been introduced bearing upon the points at issue? If so, there is noth

Carter v. Columbia and Greenville Railroad Company.

ing left for the judge but the legal points involved, and the facts must be submitted to the jury; if not however a nonsuit is proper. Holley v. Walker, 7 S. C. 144; Miller v. Bolt, 16 id. 636; Boykin v. Watts, 6 id. 76.

Now the gist of this action is negligence on the part of the defendant. This was alleged in the complaint, and to entitle the plaintiff to go to the jury on that question it was necessary before the defense was put to proof, for the plaintiff to make out at least a prima facie showing. The defendant denies, first, that such showing was made; and second, that if made it was overthrown by the additional testimony of the plaintiff proving contributory negligence by the deceased.

We do not think that this second ground could have been considered by the judge. That involved a question of fact, the truth of which depended upon the force and effect of the evidence touching that question, and before the judge could have reached the conclusion that contributory negligence by the deceased appeared, he would have been compelled not to consider simply whether any testimony had been offered upon that subject, but whether the fact had been made out that the testimony was sufficient in its force and effect to establish it. This would have been invading the province of the jury, and therefore unwarranted in this State under our Constitution. Elsewhere the cases are conflicting.

This exception then must stand or fall upon the first ground. Was there a total failure by plaintiff to make out a prima facie case of negligence by defendant? It may be said in general terms that negligence, legally understood, is the "absence of due care." The presiding judge thus defined it below, and the doctrine is so familiar that this definition may be adopted without citing authorities. In a special case it is the absence of such care as the business or matter producing the injury may demand, and the party in charge bound to bestow, out of due regard to the rights of others. This being a material fact, indeed, the essential fact in all actions like. the present, it must be proved affirmatively by the plaintiff.

Now let us examine the evidence introduced by the plaintiff in this case, under the the light of these principles, with the view to determine whether there was any testimony bearing upon this point. The testimony offered by the plaintiff has been briefly stated above, and there is no controversy as to the points to which it was directed. It