so made as to grade the compensation in proportion to the population and necessary service required. (11) In all other cases, where a general law can be made applicable, no special law shall be enacted. (12) The General Assembly shall forthwith enact general laws concerning said subjects for said purposes, which shall be uniform in their operation: provided, that nothing contained in this section shall prohibit the General Assembly from enacting special provisions in general laws. (13) The provisions of this section shall not apply to charitable and educational corporations, where, under the terms of a gift, devise or will, special incorporation may be required."

1. The statute does not violate subdivision 4 of that section, for the reason that a school district is not an educational institution, and therefore that provision is inapplicable. It has reference to institutions of learning, such as colleges. Nor is it repugnant to subdivision 5 of that section, as the statute does not incorporate the school district, but is in effect only an amendment of a previous statute of incorporation. It will be observed that the General Assembly is not only prohibited from enacting local or special laws of incorporation, concerning any of the subjects enumerated in subdivisions 3 and 4, but likewise from amending or extending charters already in existence. In subdivision 5, however, there is only a prohibition against the incorporation of a school district, but there is no inhibition against amending or extending a charter granted prior to the adoption of the Constitution.

2. The next question is whether the statute was obnoxious to subdivision 11. This subdivision must be construed in connection with article 11, § 5, which provides that "the General Assembly shall provide for a liberal system of free public schools for all children between the ages of six and twentyone years, and for the division of the counties into suitable school districts, as compact in form as practicable, having regard to natural boundaries, and not to exceed fortynine, nor be less than nine square miles in area: * ✦✦ provided, further, that nothing in this article contained shall be construed as a repeal of the laws, under which the several graded school districts of this state are organized. The present division of the counties into school districts and the provisions of law now governing the same shall remain until changed by the General Assembly." In granting general laws concerning school districts which shall be uniform in their operation, the General Assembly, in providing for the division of counties into suitable school districts as compact in form as possible, has the power in each instance to regard natural boundaries, and to determine the number of miles in area a school district shall contain, provided it shall not exceed 49 nor be less than 9 square miles. This could unquestionably be enacted as a special provi

sion in a general law. A statute, therefore, which could be enacted as a special provision in a general law will not be declared unconstitutional merely because it is in form a separate act, but will be regarded as an amendment of the general law upon the subject. Grocery Co. v. Burnet, 61 S. C. 205, 39 S. E. 381, 58 L. R. A. 687. In that case the court uses this language: "We think it safe to say that if it be competent for the Legislature, while enacting a general law. to enact special provisions therein, it is also competent to enact similar special provisions by way of amending a general law. The former power would necessarily include the latter."

3. The last objection urged against the constitutionality of the statute is that it is violative of article 9, § 2, which is as follows: "No charter of incorporation shall be granted, changed or amended by special law, except in the case of such charitable, educational, penal or reformatory corporations as may be under the control of the state, or may be provided for in this Constitution, but the General Assembly shall provide by general laws for changing or amending existing charters, and for the organizations of all corporations hereafter to be created, and any such law so passed, as well as all charters now existing or hereafter created shall be subject to future repeal or alteration: provided, that the General Assembly may by a twothirds vote of each house on a concurrent resolution, allow a bill for a special charter to be introduced, and when so introduced, may pass the same as other bills." We have already shown that the statute was not a special law, but in effect an amendment to a general law, as it merely contained a special provision that could have been enacted in a general law. Furthermore, section 1 of that article, which provides that "the term 'corporation,' as used in this article, includes all associations and joint-stock companies, having powers and privileges not possessed by individuals or partnerships, and excludes municipal corporations," has no reference to corporations such as a school district having the public and corporate purpose of education. The article relates to private or quasi public corporations. This objection must likewise be overruled.

The judgment of this court dismissing the petition has already been filed.

CITIZENS & MAINE BANK v. WIT

COVER.

(Supreme Court of South Carolina. July 29, 1907.)

APPEAL APPEALABLE Order.

No appeal lies from an order refusing to strike out an answer as sham.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 704.]

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

Action by the Citizens' & Maine Bank against one Witcover. From an order refusing to strike out the answer as sham, plaintiff appeals. Affirmed.

Montgomery & Lide, for appellant. Jas. W. Johnson, for respondent.

WOODS, J. This appeal is from an order refusing to strike out defendant's answer as sham and irrelevant. The complaint alleges the making by the defendant of two notes, for $180 and $500, dated April 21, 1906, payable to the order of J. G. Latimer, 60 days after date, the indorsement of the note by the plaintiff before maturity, the present ownership by the plaintiff, demand for payment, and failure to pay. Defendant answered as follows: "(1) He denies each and every allegation of the complaint not hereinafter admitted. (2) He admits that he executed the notes described in the complaint, but denies that they were given for any valuable or other consideration; but, on the contrary, he alleges that they were given solely for the accommodation of one J. G. Latimer, and were without consideration, which fact plaintiff well knew at the time It took said notes; that defendant is informed and believes that when said notes became due the said J. G. Latimer substituted his own note, with O. M. Latimer as indorser, for said notes in said bank, and said bank accepted same in lieu of this defendant's notes, thus releasing him from all liability to said bank on account of said notes. (3) He admits the allegations contained in paragraphs 1 and 4 of plaintiff's first cause of action, and the allegations contained in 1 and 4 of plaintiff's second cause of action."

The motion to strike out was made on the pleadings; the affidavits of W. E. Vest, cashfer of the plaintiff bank, denying the substitution of Latimer's notes for the notes in suit, and asserting the bank's ownership of the notes; the affidavit of W. J. Montgomery, Esq., setting forth separate admissions of liability by the defendant after the notes had come into his hands; and a number of letters of the defendant to the bank, written after the maturity of the notes, asking for indulgence, and making no allusion to any defense set up in the answer. The circuit judge thus states his conclusions of law and fact: "No contrary showing was made by the defendant, his counsel taking the position that by his answer he had denied a terial allegation of the complaint, viz., that the plaintiff is the legal owner and holder of the notes sued on, and therefore the answer could not be disposed of on motion. my opinion this position is unsound, because the defenses set up are in themselves admissions of title in the plaintiff. At the hearing before me, defendant's attorney abandoned the defense that the notes were accommodation paper. I am satisfied from the show

ma

In

ing made by the plaintiff that the answer made by the defendant is sham and irrelevant, and intended merely for delay; but as the answer raises one issuable fact, viz., whether or not the plaintiff took the notes indorsed by O. M. Latimer in substitution for the note of the defendant, I do not think I have the power to strike out the answer as sham and irrelevant on affidavits."

Section 173, Code Civ. Proc. 1902, provides: "Sham and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court may, in its discretion, impose." The exceptions raise the question whether the remedy provided is available when the sham of the answer is not to be seen on the face of the record, but can be made to appear beyond doubt by affidavits or other evidence. Inasmuch as the motion to strike out was denied, the order is not appealable, and we are precluded from consideration of the important and interesting question. Harbert v. Railway Co., 74 S. C. 13, 53 S. E. 1001.

The judgment of this court is that the judgment of the circuit court be affirmed.

GREEN v. CATAWBA POWER CO. (Supreme Court of South Carolina. July 25, 1907.)

MASTER AND SERVANT-INJURIES TO SERVANT -SAFE PLACE TO WORK.

In an action for injuries to a servant, alleged to have been caused by failure of a master to provide a safe place to work, before the master can escape liability he must show that the servant had assumed the duty of adjusting the proper appliances which he furnished, and where this is not admitted, and the evidence admits of any other inference, the issue is for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1000, 1001.]

Appeal from Common Pleas Circuit Court of York County; Prince, Judge.

Action by Ben Green against the Catawba Power Company. Judgment for plaintiff, and defendant appeals. Affirmed. See 55 S. E. 125.

Wilson & Wilson and Russell G. Lucas, for appellant. Green & Hines and Mr. McDow, for respondent.

GARY, A. J. This is an action for damages alleged to have been sustained by the plaintiff in consequence of the falling of a battle post, which he was assisting to raise and place in position, as a part of the bench of a bridge, by means of a jim pole. The acts of negligence specified in the complaint are: (1) That the defendant failed to brace properly the bottom of the jim pole, or otherwise fix it securely; (2) that it failed to warn plaintiff of the extra hazard by reason of the erection of the jim pole in an unsafe manner; (3) that it caused the block and tackle to be fastened by a chain to the bottom of the jim pole, instead of fastening it

to a secure object; and (4) that it failed properly to inspect the jim pole and superintend its erection. The defendant denied the allegations of negligence, and set up the defenses of contributory negligence and assumption of risk. At the close of the plaintiff's testimony the defendant made a motion for a nonsuit on the following grounds: "(1) That the evidence fails to show any negligence on the part of the defendant company, causing or being the proximate cause of the injury to the plaintiff. (2) Upon the ground that the evidence shows that, if the plaintiff's injury was due to negligence, it was the negligence of a fellow servant or fellow servants." The motion was refused. The jury rendered a verdict in favor of the plaintiff, and the defendant appealed.

The first and second exceptions are as follows: "(1) Because his honor erred in refusing the defendant's motion for a nonsuit on the ground that the evidence failed to show any negligence on the part of the defendant, causing or being the proximate cause of the injury to the plaintiff; the error consisting in his not finding that the injury to the plaintiff was caused by the falling of a battle post, which was being raised by a jim pole to which was attached ropes and blocks and tackle, and that the fall of such battle post was due to the failure of Roseman (the foreman), or other members of the gang at work, to secure, guy, or fasten the bottom of said jim pole, or to adjust said ropes, blocks, and tackle, and that the duty to so secure, guy, and fasten such jim pole, and to properly arrange, attach, and adjust the said ropes, blocks, and tackle, was a duty resting upon the servants of the defendant who were working with the same, and was a mere detail incident to the work, and was not a part of any duty that the defendant owed to the plaintiff, and that consequently there was no such breach of any duty owed plaintiff by the defendant, and no negligence was shown on the part of the defendant. (2) Because his honor erred in refusing defendant's motion for nonsuit on the ground that the testimony showed that the plaintiff sustained his injury through the negligence of his fellow servant; his error consisting in not finding that the testimony showed that Roseman was the fellow servant of the plaintiff at the time of the acts causing the injury to plaintiff." The third exception is substantially the same as the second. These exceptions will be considered together.

The first point which the appellant's attorneys make in their argument is as follows: "Defendant furnished a sufficient supply of safe and suitable appliances. The negligence, if any, was in the adjustment, setting up, and adaptation of the appliances to the work in hand. It is well settled that the adjustment and adaptation of implements to the work in hand, according to its various needs, is the duty of a servant, and not of the master, and negligence on defendant's

part cannot be predicated upon the failure to use due care in that regard." They cited numerous authorities which amply sustain said proposition, provided it appears, either from the express language of the contract entered into between the master and servant or by implication, that the servant agreed to adjust the appliances as the occasion required during the progress of the work, or no other inference could be drawn from the evidence. Unless this fact is admitted, the court cannot say, as matter of law, that the servant undertook to discharge this duty, and must submit the question to the jury. In 2 Labatt on Master & Servant, § 615, the rule is thus stated: "The limits of a master's liability for an injury caused by a scaffold or other appliance, constructed or adjusted as a part of the work, are determined upon the hypothesis that it is his duty, in the alternative, 'to furnish either a suitable platform or scaffold for doing the work that the plaintiff and his employés were required to do, or proper and suitable materials for the construction of such a platform.' Under the general principle stated in section 594, supra, the question whether the one or the other of these duties was chargeable to the master is primarily one for the jury, under proper instructions. The starting point of one of these lines of investigation may be said to be in the question whether the construction or adjustment of the defective instrumentality was a funetion which the master was justified in leaving to the servants themselves. The virtual effect of the authorities is that, whenever the defective scaffold or other appliance was essentially one of a temporary character, constructed or adjusted with a view to some particular piece of work, the master cannot be held negligent merely for the reason that he left such construction or adjustment to the servants themselves. Accordingly, whenever the instrumentality is one of this character, the burden of proof lies on the servant to overcome the presumption of nonculpability by adducing some positive evidence from which an obligation on the master's part to furnish such instrumentality in a completed state is reasonably inferable. On the other hand, it is also clear, both upon principle and authority, that the fact of an appliance being or dinarily prepared by the plaintiff's fellow servants is not necessarily a bar to the action. Since the duty to furnish safe appliances rests upon the master, he must discharge his duty in the premises.

*

The essential question to be determined, if we choose the alternative line of investigation, is whether the master as a matter of fact assumed to furnish the scaffold or other instrumentality in a completed form, or merely furnished the materials and left them to be used by the servants themselves. Clearly, if such assumption is established, the master will be liable as for negligence, even if the

circumstances were such that he would have been justified in leaving the servants to prepare the defective instrumentality themselves. The case is for the jury where the evidence is conflicting, or reasonably consistent either with the hypothesis that the defective appliance was constructed by the fellow servant of the injured person out of the materials furnished by the master or with the hypothesis that it was constructed under the direction of the defendant or his representative." In a note to that section, on page 1784, we find the following: "Donnelly v. Booth Bros. & H. I. Granite Co. (1897), 90 Me. 110, 37 Atl. 874 (negligence here was in the erection and support of a run for large stones and in the selection of the gear), citing Arkerson v. Dennison (1875), 117 Mass. 407, where the general rule was laid down as follows: 'When the preparation of the appliances is neither intrusted to nor assumed by them, the master may be held guilty of negligence if defective appliances are furnished, even though the workmen themselves are employed in the preparation of them. In such case, negligence appearing, it is a question of fact for the jury whether that negligence was in respect of what was done or undertaken by the fellow workmen or was the negligence of the master.'" In the case of Charping v. Toxaway Mills, 70 S. C. 470, 50 S. E. 186, the facts were that the plaintiff was standing on a scaffold, which is a temporary structure, working for defendant as a carpenter. The cross-beam of the scaffold broke, and the plaintiff was thrown to the ground and injured. The basis of the action for damages was the alleged failure of the defendant to provide the plaintiff, his employé, a safe place to work. The court said, at page 476 of 70 S. C., page 188 of 50 S. E.: "There is no doubt that the master is liable when injury comes to a servant from being put in a place or furnished with appliances which the master, by the use of reasonable diligence, ought to have known to be unsafe, as well as when he had actual knowledge of the defects."

There was testimony sustaining the following allegations of the complaint: That on the 8th of February, 1904, the defendant was engaged in the construction of a public road and bridge over the creek therein mentioned; that on the said day the plaintiff was employed by defendant as a common laborer, and as such was engaged with a grading gang, which was constructing a roadway, approaching a point where the bridge was being constructed; that James Roseman, the foreman in charge of defendant's works, was engaged in erecting the benches for the bridge; that James Roseman, while superintending the erection of one of the benches, summoned the plaintiff from the work of grading the road and ordered him to assist in the erection of the bench, known as a "battle post," which plaintiff at once proceed

ed to do, as his duty to defendant required. If Roseman, the foreman, alone had been intrusted with the duty of adjusting the jim pole, as became necessary in the erection of the bridge, and through a defective adjustment the place where he worked was rendered unsafe, in consequence of which he was injured, he would not have been entitled to damages. Keys v. Granite Co., 72 S. C. 97, 51 S. E. 549. The same principle would apply where other servants also agree to arrange the appliances so as to form a completed machine, although it might render the place where they worked unsafe by reason of the negligent manner in which the appliances were adjusted. The reason is that the injury would be attributable to the misconduct of the fellow servant. But, before the master can escape liability for failing to provide a safe place to work, he must show that the servant had taken upon himself the duty of adjusting the appliances (in which case the principle for which the appellant's attorneys contend would apply). This may be shown by express agreement or by implication, and, unless admitted, presents a question of fact to be determined by the jury. In the present case it does not appear from the testimony that the plaintiff even had any knowledge that he was supposed to have undertaken to adjust the appliances, and it cannot be said, as a matter of law, that he entered into such an agreement.

The fourth exception assigns error in refusing the motion for a nonsuit on the ground that the testimony showed that the plaintiff assumed the risk in consequence of which he was injured. Rule 18 (33 S. E. viii) of the circuit court is as follows: "A motion for a nonsuit must be reduced to writing by the moving counsel, or by the stenographer, under the direction of the court, stating the grounds of the motion." The intention of the rule is that the grounds be stated specifically. It will be seen by reference to the grounds of the motion for nonsuit that this ground was not relied upon. But, waiving this objection, the testimony alone of James Roseman, a witness for the appellant, is sufficient to show that this exception should be overruled.

It is the judgment of this court that the judgment of the circuit court be affirmed.

ANDERSON v. SOUTH CAROLINA & G. R. CO.

(Supreme Court of South Carolina. July 27, 1907.)

1. CARRIERS-INJURY TO PASSENGER-ASSAULT BY FELLOW PASSENGER.

In an action for injuries to a passenger from the violence of a fellow passenger, an instruction that, if the injury complained of was so unexpected that defendant's employés could not have seen and prevented it by the highest degree of care, plaintiff could not recover, was proper.

2. SAME-INSTRUCTIONS.

An instruction that, when a passenger is injured on a train without fault on his part while being transported by a carrier, a presumption arises from this fact alone that there was negligence on the part of the carrier, which presumption the carrier is bound to rebut, or it will be liable in damages without further proof, is erroneous, in that no such presumption can arise from mere injury, unless caused by some instrumentality in the charge of the carrier, and notice of the threatened violence or impending danger must be brought home to the carrier before negligence can be imputed.

Appeal from Common Pleas Circuit Court of Aiken County.

Action by B. J. Anderson against the South Carolina & Georgia Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Hendersons, for appellant. Croft & Salley and Sawyer & Owens, for appellee.

JONES, J. Plaintiff recovered a judgment of $1,250 against defendant for alleged negligence in failing to supply sufficient coaches to accommodate the passengers on its train from Augusta, Ga., to Langley, S. C., on the afternoon of June 28, 1902, in permitting white and colored passengers to ride in the same coach, in not having a sufficient force of employés upon the train, and in failing to protect plaintiff-a passenger-from violence on the part of a fellow passenger, as the result of which negligence plaintiff received a pistol shot wound in the leg, inflicted, without fault on his part, by one of the negro passengers in the coach immediately in front of the car in which plaintiff was riding. This appeal questions the correctness of the charge to the jury.

SO

The defendant requested the court to charge that if the injury complained of was caused by another passenger, and was sudden and unexpected that the defendant's employés could not have foreseen and prevented it by the exercise of due care, then the defendant would not be liable. The court charged the request, except that the words "the highest degree of care" were substituted for the words "of due care." This modification of the request and the general charge that a railroad company must exercise the highest degree of care in the protection of passengers from injury or violence form the basis of the first and second exceptions. The charge as given correctly stated the law as to the degree of care to be exercised by carriers of passengers. Steele v. Southern Railway, 55 S. C. 393. 33 S. E. 509, 74 Am. St. Rep. 756; Latour v. Southern Railway, 71 S. C. 543, 51 S. E. 265; Franklin v. Railway Co., 4 S. C. 332, 54 S. E. 578.

The third exception complains of error in charging "that the obligation of a common carrier for safe transportation is one arising from contract imposing duties growing out of the relation between the parties, involving

trust and confidence, requiring extraordinary care, and whenever a passenger is injured on

a train, without fault on his part, while being transported by a carrier, a presumption arises from this fact alone that there was negligence in the management of the road, which presumption the carrier is bound to rebut, or it will be liable in damages without further proof" the error being that no presumption of negligence can arise from the mere injury of a passenger unless it is shown that the injury was caused by some instrumentality in the charge of or under the control of the carrier, and that some notice of the threatened violence or impending danger must be brought home to the carrier before negligence can be imputed. This exception is well taken. According to the rule in this state, there is no presumption of negligence on the part of the carrier from the bare fact that a passenger has been injured while on the carrier's train, but that such presumption does arise on proof of such injury as the result of some agency or instrumentality of the carrier, some act of omission or commission of the servants of the carrier, or some defect in the instrumentalities of transportation. Steele v. Railroad Co., 55 S. C. 389, 33 S. E. 509, 74 Am. St. Rep. 756; Jarrell v. Railroad Co., 58 S. C. 494, 36 S. E. 910; Doolittle v. Railroad Co., 62 S. C. 139, 40 S. E. 133; Stembridge v. Railroad Co., 65 S. C. 447, 43 S. E. 968; Hunter v. Railroad Co., 72 S. C. 340, 51 S. E. 860. The charge was harmful, as in this case the injury was not caused by any agency or instrumentality of the defendant, but by the direct act of a fellow passenger. In such case "knowledge of the existence of the danger or of the facts and circumstances from which the danger may be reasonably anticipated is necessary to fix a liability upon the carrier for damages sustained in consequence of failure to guard against it." 1 Fetter on Carriers. § 96, quoted with approval in Franklin v. Railway Co., 74 S. C. 335, 54 S. E. 578. Numerous cases in other jurisdictions support this rule. but we cite only Tall v. Baltimore S. P. Co., 90 Md. 248, 44 Atl. 1007, 47 L. R. A. 120, wherein the subject is well considered.

It is not deemed necessary to consider the remaining exceptions to the charge.

The judgment of the circuit court is reversed, and the case remanded for a new trial.

MORAGNE v. CHARLESTON & W. C. RY. CO. (Supreme Court of South Carolina. July 27, 1907.)

RAILROADS PRIVATE CROSSING-REPAIR.

Where a road leads from the public road across a railroad to a house, and is used only by the owner and by the tenant of a neighbor, it is a private way, and the railroad is not required to keep the crossing over such private providing that a railroad crossing a highway way in repair, under Civ. Code 1902, § 2183, shall protect its rails, so as to procure a safe passage across the road.