casion. Was he negligent? Did he lack ordinary care in the way in which he handled those rails? Gentlemen of the jury, in handling them, did he fall short of that standard --the standard of ordinary care? If you find that he did, and that caused the injury, then --why, then, of course, under the charge which I have given you, he contributed to his own injury. If you find on that occasion that he didn't fall short of the standard, taking everything into consideration-he handled the rails with the force of hands just as an ordinarily prudent man would have been expected under the same circumstances --he would not be guilty of a lack of ordinary care. Then, if defendant was negligent, you cannot charge him with contributory negligence." The request to charge was objectionable, for the reason that it undertook to say what facts would constitute negligence. Even if the evidence showed that the plaintiff's injury resulted from his use of the force for the work in a more dangerous way, and also that he was not directed or required by his employer to adopt the more hazardous way, nevertheless it was for the jury to draw the inference therefrom, and to determine whether such facts constituted negligence.

Tenth Exception. The case of Youngblood v. R. Co., 60 S. C. 9, 38 S. E. 232, 85 Am. St. Rep. 824, shows that the request to charge was properly refused, in which the court uses this language: "Section 15, art. 9 of the Constitution, sets at rest any doubts that might be entertained on this question. It provides that 'knowledge by an employee injured by the defective or unsafe character or condition of any machinery, ways or appliances, shall be no defense to an action for injury caused thereby, except as to the conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them.' In other words, where an employé is injured while voluntarily operating machinery after knowledge of its unsafe condition, his action for injury caused thereby shall not be defeated by reason of this fact. The word 'defense' is not used in its technical sense. The words 'shall be no defense to an action' are to be understood as meaning 'shall not defeat an action.' The Constitution did not intend to deal with pleadings, but with a principle of law. It did not intend that a defendant on a motion for nonsuit should get the benefit of a state of facts which the Constitution declared should be no defense to the action." The object of this provision was to take from a defendant that failed to furnish suitable maIchinery the right to defeat an action by the employé by showing that he did not act with due care in voluntarily operating the machinery after knowledge of its defective condition.

Eleventh Exception. This exception is likewise disposed of by the case last mentioned.

Twelfth Exception. There was testimony

to sustain the finding of the jury. This exception must therefore be overruled.

The judgment of the circuit court is affirmed.

JONES, J., Concurs.

POPE, C. J. (dissenting). This is the second visit of this action to this court. The jury at the first trial gave the plaintiff $2,400 damages. A new trial was ordered by this court. See 61 S. C. 468, 39 S. E. 715. At the time of new trial, before Judge Ernest Gary and a jury, a verdict for $1,000 was given the plaintiff, but, on the ground of inadequacy of verdict, the circuit judge ordered a new trial. At the third trial, before the Honorable Joseph A. McCullough, as special judge, and a jury, a verdict for $3,000 was given the plaintiff. After entry of judgment on this last verdict, the defendant gave notice of its appeal from the order of Judge Ernest Gary granting a new trial, and also its appeal from the judgment for $3,000. Exceptions were exhibited against the order of Judge Ernest Gary and the judgment for $3,000. It is apparent that if the order of Judge Ernest Gary is untenable, because erroneous, there is no necessity to consider any of the grounds of appeal in the last case, for, if Judge Ernest Gary was in error, the verdict for $1,000 still remains a valid verdict, and the judgment for $3,000 must be set aside as a nullity. We will therefore first consider the exceptions presented to Judge Gary's order for a new trial.

It will be proper to state what the character of the action is, as stated by the pleadings and the judgment of this court in this action, as found in 61 S. O. 468, 39 S. E. 715. Mr. Justice JONES, in passing upon the issues as presented by the pleadings, said:

"This appeal comes from a verdict and Judgment in favor of plaintiff in an action for damages for personal injuries alleged to have been sustained through defendant's negligence in failing to furnish an adequate force of laborers to do the work required of the plaintiff as section track foreman, in the hauling and piling of steel rails, after application for additional help by the plaintiff, and promises of defendant to supply the same. The sixth paragraph of the complaint alleged:

"(6) That on the 15th day of February, 1900, while the plaintiff, in compliance with the orders of the defendant, was trying, with the assistance of his three hands, to carry one of the said steel rails up an embankment for the purpose of loading it on his car, and hauling and piling it, as aforesaid, one of the said hands was entirely overcome and exhausted by the great weight of the said steel rail, on account of the failure of the defendant to furnish a sufficient force to carry the same, and fell to the ground, thereby causing the whole weight of one end of the steel rail to be thrown on the plaintiff.

trial."

of court that a new trial would not be granted where the verdict was small in proportion to the costs required for a new Again, in the same work, at page 765, under the heading, "New Trials for Inadequate Damages not Granted at Common Law," is the following: "There has never been a doubt that the power to grant new trials for excessive damages exists at common law, as well in actions ex delicto as in actions ex contractu; but smallness of damages seems not to have been ground for a new trial, at least in actions of trespass, until it was made such by statute apparently for no better reason than that actions for torts (at least, actions of trespass vi et armis), were considered as bearing an analogy to prosecutions for crimes, as to which it is an admitted doctrine that whilst a new trial may be granted, upon the application of the accused, upon the ground that the punishment inflicted by the jury is too great, no such application is allowed on the part of the commonwealth because the penalty assessed by the jury is too small." We might cite many other authorities, but upon reflection it seems the foregoing citations are sufficient to establish the proposition that, under the common law, the trial judge had no right to pass the order.

3. What is the rule as to granting new trials in cases of personal injuries, when the plaintiff conceives his verdict to be inadequate, established in this state both by our decisions and our statutes? We remark that in the year 1789 (see 7 St. at Large, p. 253) our General Assembly enacted as follows: "That from and after the sitting of the several circuit courts next ensuing, the said circuit court shall [have] and they are hereby declared to possess and shall be capable of exercising the same complete and original and final jurisdiction as possessed and exercised by the courts of general sessions of the peace and of common pleas now held in Charleston unless otherwise directed by this act according to the custom, usages and practice of the said courts; any law, custom or usage to the contrary notwithstanding." The common law of England was made of force in this state to govern the courts as they existed in this state prior to 1789, but a more generous holding of the courts in this state was provided by this statute in the year 1789, and the object of this statute was to clothe these new courts of common pleas with all the power formerly exercised by the courts that were confined to the city of Charleston. This statute remained of force until the year 1872, when it was formally repealed. But in the year 1868, in September, an act was passed by the General Assembly of this state by which it was enacted, in section 1, that circuit judges "shall have the power to grant new trials in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law of the United States." See 14 St. at Large, p. 136. This provision

was adhered to in the General or Revised Statutes adopted in 1872. However, the General Statutes of 1882 changed this by striking out the words "of the United States," and inserting the words "of the courts of law of this state." See section 2113 of General Statutes of 1882. And so the law stands till to-day. See section 2734 of the Code of 1902. Thus it is made necessary for us to see, by examination of our decisions, what were the reasons given for granting new trials, as they have been usually granted. We find but two decisions when new trials were granted because of inadequacy of verdicts in cases of personal injurles. These are Bacot v. Keith, 2 Bay, 466; Wallace v. Frazier, 2 Nott & McC. 516. In the former, where there was a ferocious assault and battery, the jury only accorded the plaintiff $1 of damages. The Court of Appeals declared: "The judges were unanimously of the opinion that the jury in this case had behaved most shamefully, and deserved the severest reprehension of the court for such glaring partiality and injustice. And although it was not usual to grant new trials on account of the smallness of damages, yet this was so extraordinary a case, in which every principle of justice has been outraged, that they could not hesitate a moment in ordering a new trial, and that without costs." In the latter case, it was a suit to recover damages for the breach of a warranty in writing for the soundness of a negro which was really unsound. This was, therefore, ex contractu. The jury found for plaintiff one cent damages. The court ordered a new trial, and said: "The testimony on the point was clear and uncontradicted, and the jury was not authorized to disregard it, and adopt an arbitrary rule of their own, unsupported by any testimony. The verdict was clearly against the evidence, and a new trial must be awarded." Now, we come to examine cases in our Reports on the subject granting new trials for verdicts for excessive damages. Many cases will be found sustaining that right. Bourke v. Bulow, 1 Bay, 49; Nettles v. Harrison, 2 McCord, 230; Richardson v. Murray, Cheves, 11; Morgan v. Livingston, 2 Rich. Law, 581; Mayson v. Sheppard, 12 Rich. Law, 254; Poppenheim v. Wilkes, 2 Rich. Law, 354; Fripp v. Martin, 1 Speer, 236; Davis v. Ruff, Cheves, 17, 34 Am. Dec. 584; Stott v. Ryan, 3 Brev. 417. It was well said: "That courts have no right to annul the verdict of a jury solely on account of the smallness or insignificance of the sum allowed is well settled. They have the authority only where gross injustice clearly appears aliunde the verdict. It is a power the courts are loath to exercise, for in no case is there greater danger of usurping the exclusive function of the jury. In actions of the nature of the one at bar, there is no measure of sums." "No custom or market or law fixes a value to the injury done, and therefore the law has made it the exclusive

and peculiar province of the jury to name the amount to which a plaintiff may be entitled. No other judgment or opinion must be substituted for the combined judgment and opinion of the jury."

But what is our statute law on this subject? Very clearly, provision is made for the grant of a new trial for excessive damages by the circuit judge, but no mention is made therein of the power of a circuit judge to grant a new trial for inadequacy of the verdict in cases of personal injury. Our Code of Civil Procedure, under section 286, in the fourth subdivision, provides, "The judge who tries the cause may in his discretion entertain a notion to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motions, if heard upon the minutes, can only be heard at the same time at which the trial is had." This has been the statute law of this state for years. We thus see that the motion granted by the circuit judge in the case at bar was not sanctioned by the common law, nor was it sustained under the statutes of this state, as is shown by the decisions of our court. It was not a usual course in our courts to grant motions for a new trial upon the inadequacy of verdicts of juries. An examination of our Reports will fail to disclose an instance where a verdict of $1,000 in a suit for $10,000 has ever been held as an inadequate verdict. The very fact that every Code of this state has provided the power in circuit judges to grant new trials for excessive damages, and in no instance has provided for power in circuit judges to grant new trials for inadequate damages, is a strong circumstance. To admit the existence of this power in the circuit judges, without a line of authority therefor, is fraught with great danger.

This conclusion renders it unnecessary to consider any other questions presented by this appeal. In my opinion, it follows that we must reverse and set aside all the proceedings before Special Judge Joseph A. McCullough, and order the action remanded to the circuit court, with directions to that court to carry out our judgment, reversing the order for a new trial granted by Judge Ernest Gary, with leave to the plaintiff to enter up his judgment on the verdict for $1,000 rendered by the jury in the trial of this action had before the Honorable Ernest Gary as circuit judge.

On Rehearing.

(May 18, 1903.)

PER CURIAM. After careful examination of the petition for a rehearing in this case, and the court being satisfied that no material question of law or of fact has either been overlooked or disregarded, it is ordered that

the petition be dismissed, and that the order heretofore granted staying the remittitur be revoked.

(101 Va. 690)

SHUFFLEBARGER v. BLANCHARD. (Supreme Court of Appeals of Virginia. July 2, 1903.)

JUDGMENT-RES JUDICATA-SAME SUBJECTMATTER.

1. Complainant filed her bill to have set aside a tax deed dated December 23, 1899, conveying to defendant 34 acres of land. Defendant filed a plea of res judicata, setting up that she obtained title to the land embraced in the deed of December 23, 1899, by virtue of another tax deed dated December 13, 1898, and that this last deed was confirmed to her by decree of court in a suit to which complainant was a party, etc. It appeared that defendant, as assignee of a third person, obtained from the clerk of the county court of the county a deed dated December 13, 1898, conveying to her 60 acres of land; that on December 23, 1899, she obtained from the same clerk a second deed conveying to her 34 acres of land. There was nothing in the description of the deeds to suggest whether the larger tract embraced the smaller, and the evidence in the record tended to show that it did not; the larger tract being bounded at several points by the smaller. Held, that the plea was not sustained.

Appeal from Circuit Court of City of Bristol.

Bill by Mary L. Shufflebarger against Bessie B. Blanchard. Bill dismissed, and complainant appeals. Reversed.

H. G. Peters, for appellant. A. H. Blanchard and J. S. Ashworth, for appellee.

HARRISON, J. The bill in this case was filed by the appellant, Mary L. Shufflebarger, seeking to have set aside a tax title deed dated December 23, 1899, from the clerk of the county court of Washington county, conveying to appellee, Bessie B. Blanchard, a tract of land containing 34 acres, 1 rood, and 2 poles, upon the ground of irregularities in the proceedings by which the deed was obtained, and, further, upon the ground of fraud in its procurement.

There was no error in the action of the circuit court in overruling the demurrer to the bill. The allegations of the bill furnish ample ground for the interposition of a court of equity, and the demurrer admitted their truth. The demurrer being overruled, appellee filed a plea of res judicata, in which she alleges that she obtained title to the land embraced in the deed of December 23, 1899, under and by virtue of another tax deed from the clerk of the county court of Washington county, dated December 13, 1898; further alleging that this last-mentioned deed was confirmed to her by the circuit court of Washington county by a decree entered on the 19th day of April, 1899, in the suit of J. H. Miller v. Wm. Shufflebarger, etc., and that appellant was a party to that suit, and had full opportunity therein to obtain the relief

now sought in this suit; and therefore that the matters in controversy are res judicata as to her. Issue was joined upon this plea, and the circuit court sustained the contention of appellee, holding that the land in controversy, embraced in the deed of December 23, 1899, was covered by the deed of December 13, 1898, and dismissed the bill.

It appears that appellee, as assignee of the rights of L. P. Summers, obtained from the clerk of the county court of Washington county a deed dated December 13, 1898, to 60 acres of land, described by metes and bounds. It further appears that on the 23d day of December, 1899, appellee obtained from the same clerk a second deed of the last-named date conveying to her 34 acres, 1 rood, and 2 poles, which is likewise described by metes and bounds. These two deeds purport to be executed, in pursuance of the statute, for land sold and bought in by the commonwealth for taxes. They are practically in the same words, except the amount and description of the land mentioned in each. As already shown, the deed of 1898 conveys 60 acres, while the deed of 1899 conveys 34 acres, 1 rood, and 2 poles. There is nothing in the description by metes and bounds to suggest that the larger tract embraces the smaller; on the contrary, it would seem that such was not the case, as the outside boundaries of the larger tract make it, at certain points, bounded by the Finley Shaffer land, which is the smaller tract, or land in controversy.

There is in the record a deed dated December 16, 1879, from Joseph Booker, of the county of Washington, which conveys to the widow and heirs of Robert Kindrick-the widow mentioned being the appellant herea tract of land containing 60 acres, described as the land of one James Shaffer. The metes and bounds given in this deed are exactly the same as those in the deed dated December 13, 1898, from the clerk to the appellee, and show that the 60-acre tract is bounded at several points by the land of Finley Shaffer.

There is also in the record a deed dated February 22, 1901, from Finley Shaffer to the widow and heirs of Robert Kindrick, conveying to them a tract of land containing 34 acres, 1 rood, and 2 poles. This deed states that it is in lieu of a lost deed to the same land made to Robert Kindrick in his lifetime. The metes and bounds given in this deed are practically the same as those given in the deed dated December 23, 1899, from the clerk conveying to the appellee the 34 acre, 1 rood, and 2 pole tract.

These two deeds show that the land in conroversy, 34 acres, 1 rood, and 2 poles, is an entirely different tract of land from the 60acre tract, and was derived by the appellant from an entirely different source.

The record in the case of Miller v. Shufdebarger, which is the sole evidence relied

wholly fails to sustain such plea. The bill in that case was filed to subject to sale a tract of 60 acres of land. The allegation is that the debtor owned a tract of 60 acres, describing it as the James Shaffer land, and the same conveyed by Joseph Booker to the widow and heirs of Robert Kindrick. The commissioner to whom the cause was referred reports that the land sought to be subjected in that suit had been sold for taxes, and conveyed to appellee by deed dated December 13, 1898; thus identifying the land embraced in the lastmentioned deed as the Booker land, derived from James Shaffer. And the final decree of April 19, 1899, brings the cause on upon the commissioner's report, and the deed from the clerk to the appellee for the 60 acres, and, recognizing that said deed defeated the object of the suit, dismissed the cause at the cost of the complaining creditor. There is nothing in the record of Miller v. Shufflebarger to show that the tract of land containing 34 acres, 1 rood, and 2 poles was involved in that suit, or that the parties thereto could have, or were called upon to litigate therein, any right or question with respect thereto. If it be true, as contended by appellee, that her first deed to the 60-acre tract covers and embraces the 34 acre, 1 rood, and 2 pole tract now in controversy, the record affords no explanation of the apparently unnecessary course of afterwards obtaining a second deed to part of the same land already covered by the first.

Upon the whole case, we are of opinion that the plea of res judicata was not sustained, and that appellant was not estopped by the record of Miller v. Shufflebarger to maintain her present suit.

For these reasons the decree complained of must be reversed, and the cause remanded to the circuit court for further proceedings to be had therein, not in conflict with the views expressed in this opinion.

(66 S. C. 328) ABBEVILLE ELECTRIC LIGHT & POWER CO. v. WESTERN ELEC TRICAL SUPPLY CO. (Supreme Court of South Carolina. July 11, 1902.)

OBJECTION TO JURISDICTION-RES JUDICATA. 1. Where an objection to the jurisdiction, based on the alleged illegal service of a summons, has been made and overruled, no second objection based thereon can be admitted, however much the specifications of the objections taken the first and second time may vary from each other.

Appeal from Common Pleas Circuit Court of Abbeville County; Townsend, Judge.

Action by the Abbeville Electric Light & Power Company against the Western Electrical Supply Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank B. Gary, for appellant. Wm. N.