tion." For example, provocation by words only, however opprobrious, would not be sufficient to reduce a killing from murder to manslaughter, when death was caused by a deadly weapon, as in this case. State v. Levelle, 34 S. C. 129, 13 S. E. 319, 27 Am. St. Rep. 799.

The defendant, in his testimony and that of his daughter Susan, sought to explain the killing by showing that it happened unintentionally, in a playful tussle between him and his wife, the deceased, for the possession of the pistol. To meet this defense, the court charged as to homicide by negligence as follows: "Now, there are other kinds of manslaughter to which I must call your attention-at least to one; that is, where one is handling some dangerous weapon or implement-handles it in a careless manner, to the detriment, injury, and loss of life of some one else. Then the question is, was that death occasioned by the carelessness and negligence of the party who was handling that weapon or implement as to inflict a wound that caused the death? Negligence is the want of ordinary care. Carelessness is also the want of ordinary care. [The rule by which, in such cases as that, you are governed, is this: How do you, gentlemen, as jurors, think that a man of average sense in this position would handle a dangerous weapon or implement, under given circumstances generally! Then, under the testimony of the case you are trying, has the state shown beyond a reasonable doubt that the defendant was guilty of negli gence that is, he did act in that manner with the dangerous weapon or implement as a man of average sense and disposition, under the circumstances which the testimony shows to have existed in the case-he did act in that way, and, as a result of that, he did inflict the mortal wound, as alleged in the indictment, which caused the death of the defendant, as charged, if you find it 80, then that will be a case of manslaughter."] It is asserted in the fifth exception that the portion of the charge italicised, or within the brackets, above, was error, "as to the law governing such cases in this state, and being a charge upon the facts, in violation of the Constitution." It is clear that the charge was not in violation of the Constitution, prohibiting judges from charging in respect to matters of fact. The exception does not specify wherein the charge is in conflict with the law as to manslaughter by negligence. In Clark's Criminal Law, 172, the following definition is given: "Involuntary manslaughter is where death is unintentionally caused: (a) In the commission of an unlawful act, not amounting to a felony, nor likely to endanger life; or (b) by culpable neglect of a legal duty; as (1) by negligence in performing a lawful act; (2) by neglect to perform an act required by law." At page 175 the same author shows, by the citation of numerous cases, that a person who causes another's death by the negligent use of a pistol or gun is guilty of manslaughter, unless the

negligence is so wanton as to make the killing murder. This exception is overruled.

The sixth exception alleges error in charging the jury as follows: "So your verdict would be one of four: 'Guilty,' which means hanging; 'Guilty, with recommendation to mercy,' which means imprisonment in the State Penitentiary at hard labor for life; 'Guilty of manslaughter,' where the sentence Is left to the discretion of the court; or 'Not guilty.'" It is not pointed out wherein this charge is erroneous. Appellant cites section 120, Cr. Code, but that merely defines manslaughter, and prescribes the punishment as not less than 2 nor exceeding 30 years at hard labor in the penitentiary. If this indicates the point of error, it was entirely harmless.

The last exception is as follows: "(7) Because the presiding judge erred, as a matter of law, in refusing the defendant's motion for a new trial, when there was no testimony to prove that the deceased came to her death from the effect of the wound inflicted at the hands of the defendant; and, there being none, there was no testimony to sustain the conviction of the prisoner for the crime of murder, the presiding judge having charged the jury that the state must prove beyond a reasonable doubt that the deceased came to her death from the effects of the wound inflicted at the hands of the defendant." There was no error of law in refusing the motion for new trial, as there was evidence tending to show that the deceased came to her death from the effect of the wound inflicted by defendant. It seems that there was no post mortem examination by medical experts. The evidence in behalf of the state was to the effect that defendant and his wife were quarreling in their house; that defendant was heard to curse his wife and call her a liar; that his wife called him a liar; that defendant threatened to kill her if she called him another liar; that there was a scuffle between them; that two pistol shots were heard, but, when the second shot was heard, deceased was seen to fall through the door to the piazza floor; that defendant soon thereafter rode off rapidly on a mule. Very soon after that, Rachael, the deceased, was found on her bed, dead, with a bullet entrance wound under her left arm, and the marks of another bullet hole through her clothing. Defendant's pistol was found in his trunk, with two empty cartridges, apparently freshly discharged; and a bullet answering to the caliber of his pistol was found on the floor, dented or mashed. The defendant himself testified that he had taken his pistol and placed it on the top of his bureau; that she got the pistol; that he undertook to take it away from her in play, and got into a tussle, during which the pistol went off, and she fell to the floor; that he then placed her on the bed, and rode off for a doctor; that, after dispatching a boy on for the doctor, he returned to his house, and

was told his wife was dead. These and other circumstances that might be detailed surely afforded some evidence that death resulted from the wound inflicted by defendant. The exceptions are all overruled.

The judgment of the circuit court is affirmed.

(66 S. C. 442)

HUTCHISON v. TOWN OF SUMMERVILLE.

(Supreme Court of South Carolina. June 22, 1903.)

TRIAL-INSTRUCTIONS-REFUSAL-CITIES-DE

FECTIVE STREETS-INSTRUCTION

-DAMAGES.

1. Where the court, in commenting on requests, said, "I charge you as good law except as I may hereinafter modify them in my general charge," and the general charge was inconsistent with the requests, they were practically refused.

2. Code, 2023, providing that any person who shall be injured through defect in any street, or mismanagement of anything under the control of the corporation, within the limits of the town, may recover against the town, makes cities liable for damages resulting from failure to place safeguards at a ditch at the end of the sidewalk.

3. An instruction in an action for personal injuries declaring that "actual damages are when the wrongful act has caused a loss or injury which can be assessed in money, the universal and cardinal principle being that the person injured shall receive compensation commensurate with his loss or injury, and no more," is proper.

Appeal from Common Pleas Circuit Court of Dorchester County; Watts, Judge.

Action by Philip H. Hutchison against town of Summerville. From judgment for plaintiff, defendant appeals. Affirmed.

Burke & Erckmann, for appellant. Logan, Walker & James Simons, for respondent.

Statement of Facts.

GARY, A. J. This appeal involves the construction of section 2023 of the Code of Laws, which is as follows: "Any person who shall receive bodily injury or damage in his person or property through a defect in any street, causeway, bridge or public way, or by reason of defect or mismanagement of anything under the control of the corporation within the limits of such town, may recover in an action against the same the amount of actual damages sustained by him by reason thereof. If any such defect in a street, causeway or bridge existed before such injury or damage occurred, such damage shall not be recovered by the person so injured, if his load exceeded the ordinary weight: provided, that said corporation shall not be liable unless said defect was occasioned by its neglect or mismanagement: provided further, such person has not in any way brought about such injury or damage by his or her own negligent act or negligently contributed thereto."

The allegations of the complaint material to the consideration of the questions presented by the exceptions are as follows:

"(2) That there is a certain street in the said town, known as 'Sumter Avenue,' and that running along the east side thereof, and wholly within the corporate limits of, and under the control of, the said town, was a walk, path, or public way for the use of pedestrians, which was much used by the citizens thereof and others, and that the defendant, prior to the times hereinafter mentioned, rebuilt and repaired the said walk, path, or public way, and through its neglect and mismanagement in so rebuilding and repairing the sidewalk or public way aforesaid the same was made to contain a defect therein, in that the same, after being made to extend for some distance, was made to end abruptly in a ditch or excavation about six feet deep, which said defect was unguarded, unprotected, and without any caution or notice to wayfarers, and was permitted to remain by the said defendant, through its mismanagement and neglect, in such defective, unguarded, and unprotected condition, and without notice or caution to wayfarers at the times hereinafter mentioned.

"(3) That the plaintiff, on the night of the 3d day of April, 1902, was lawfully traveling on foot along the said sidewalk or public way rebuilt and repaired as aforesaid, carrying nothing but the ordinary wearing apparel worn on his person, and wholly unaware and without any warning or notice of, or anything to put him on his guard as to the condition of, the same or danger, without fault or negligence on his part, was precipitated into the said ditch or excavation, whereby he received great bodily injury, in that he suffered a serious sprain or dislocation of his left ankle, and that he was made sick, lame, and disabled for the space of eleven weeks, during which time he thereby suffered great pain, and was thereby then and there hindered from attending to his business for a period of eleven weeks, and has ever since remained sore, lame, and disabled, and was put to considerable expense for medical attention, and is advised by his physician and believes that he will never wholly recover from the injuries so received, but will continue to suffer therefrom and thereby during the rest of his natural life; all of which is to his damage $2,000.

"(4) That the plaintiff has not in any way brought about such injuries or damages by his own negligent act, or negligently contributed thereto."

The answer of the defendant was practically a general denial of these allegations. The jury rendered a verdict in favor of the plaintiff for $1,000. The defendant appealed upon the following exceptions:

"(1) That his honor erred in charging: 'If by reason of any defect or mismanagement of anything under their control-that is, under the control of the corporation, within the limits of that town-the plaintiff here may recover in an action against the town of Summerville, the amount of actual damages

constitute causes of action. His honor overruled the demurrer as to the first, but sustained it as to the second, third, and fourth causes of action, upon the ground that under article 9, 20, of the Constitution of 1895, and acts of the General Assembly, this defendant had the right to condemn land for its right of way."

As this is an appeal from an order sustaining a demurrer to the second, third, and fourth causes of action, we will set out one of them and state the substance of the others. The second cause of action is as follows: "(1) That the Winnsboro Granite Company is a private corporation, duly incorporated under the laws of the state of South Carolina, and doing business in the county of Fairfield and state of South Carolina. (2) That at the time hereinafter mentioned the plaintiff was and now is the owner in fee simple and in possession of the following described premises, etc. (3) That on the 27th day of March, 1900, plaintiff granted, sold, and released unto the Winnsboro Granite Company a right of way over his lands, known as the 'Andrews Place,' and described in paragraph 2 of the second cause of action in this complaint, for the purpose of constructing and operating a private railroad and telephone or telegraph line thereon, the said right of way so conveyed being in extent 1,500 feet in length and 50 feet in width. That said right of way was determined, fixed, and located by a survey made thereof by the Winnsboro Granite Company prior to the conveyance of the same by plaintiff to the defendant. (4) That the right of way being so fixed, determined, and located by the survey made by the defendant prior to the said conveyance, plaintiff, by his deed of date the 27th day of March, 1900, conveyed to the defendant the right of way as already fixed, determined, and located by said survey, but defendant failed to construct its road throughout its whole extent upon the right of way granted to defendant by this plaintiff, but, on the contrary, has unlawfully taken a strip of plaintiff's land, not conveyed to it, for a distance of 600 feet in length and 50 feet in width, for the purpose of constructing its said road, and has constructed and erected a railroad thereon for its own private use, and now unlawfully and wrongfully withholds the same from this plaintiff, without any right or title so to do. (5) That plaintiff is the owner in fee of the said strip of land 600 feet in length and 50 feet in width, and entitled to the possession of the same. (6) That the defendant went on and took possession of the said land without any right or authority whatsoever from this plaintiff, either in writing or otherwise."

The third cause of action contains substantially the same allegations as the second, except that the gist of this cause of action Is that the defendant unlawfully and wrongfully cut down and destroyed a great many

trees growing on said land, and dug up and removed the soil therefrom, for which the plaintiff claims $150 as damages.

The fourth cause of action is likewise substantially the same as the second, except that in the fifth paragraph the plaintiff alleges that, in erecting and constructing its said railroad, the defendant carelessly and negligently dug up and removed the soil of plaintiff's land on each side of defendant's right of way, without the consent or authority of the plaintiff, to his damage $450.

In his argument the respondent's attorney says: "The grounds of demurrer are substantially the same to each cause of action, and may be briefly stated as follows. It appears from the complaint: (1) That the defendant entered upon the land in question, by plaintiff's consent, to acquire a right of way, and that plaintiff did not signify in writing his refusal of consent to such entry upon said land for such purpose. (2) That, in so entering, the defendant did not commit any trespass upon said land, but entered for a lawful purpose alleged in the complaint, to wit, for the purpose of construcing and operating a railroad. (3) That, having so entered by consent of the plaintiff for said purpose, the plaintiff cannot maintain this action, because the remedy provided by the statute relative to acquirement of rights of way is exclusive of all other remedies."

The practical question presented by the exception is whether his honor the circuit judge erred in ruling that, under article 9, § 20, of the Constitution of 1895, and the acts of the General Assembly, this defendant had the right to condemn land for its right of way. By referring to volume 19 St. at Large, p. 1219, it will be seen that a charter was granted to the defendant by the Secretary of State, 31st of October, 1887, and that the object of its incorporation was to enable it to "carry on a general manufacturing, mining, and industrial business." The said charter was issued under the authority of an act of the General Assembly in 1886, entitled "An act to provide for the formation of certain corporations under general laws" (19 St. at Large, p. 540). Section 15 of that act is as follows: "Corporations organized under the provisions of this act for mining or manufacturing purposes shall have the power to construct and operate a railroad, tramway, turnpike or canal for their own use and purpose, to and from their works or place of business, or to connect with some navigable stream, or with some existing railroad, turnpike or other public highway, not to exceed ten miles in length, and shall have the right to condemn for the use of such road the right of way in lands over which the road may pass, on payment to the owner thereof just compensation, such compensation to be determined in the manner now provided by law for railroad corporations." Id. p. 544. At the time the defendant re