You understand that this is a civil and not a criminal case. In other words, it is a suit brought by one private citizen against another, and the fact that a death is involved does not mean that the defendant, if found guilty, would be subject to criminal penalties leading to his imprisonment or worse, but limited to the payment of money damages to the plaintiff. Before you retire, it is my duty to assist your deliberations by providing you with the controlling points of law which must guide you in reaching your verdict, to the exclusion of all other considerations.
On the unchallenged evidence there is no doubt that the decedent suffered death by drowning, having delivered himself into the hands of the defendant for immersion in the flowing waters of the Pee Dee River for the purpose of baptism in the Christian faith according to usage and custom, and that he was abruptly borne away by the river's current in the course of this ordeal which he did not survive.
You have heard the tragic event recounted in some detail by the defendant, and you may review his testimony in the light of that of other witnesses and of the evidence. On no account, however, are you to allow either the emotional outbursts from the spectators attending this trial, notably that provoked by defendant's son resulting in the courtroom being cleared, or any stories, gossip or other innuendo you may have encountered in the past regarding defendant's earlier alleged adventures with the law, to influence your deliberations.
We repeat, this is not a trial for murder or even manslaughter. There has been no evidence or even a suggestion of deliberate intent on defendant's part to harm the victim of this unfortunate episode. Thus, you are asked first to determine the actual cause of death and its relation to the possibility of negligence on defendant's part in the event. Clearly the testimony of one witness, for example, in an effort to simplify matters with the words "he just got drownded" will not suffice. The medical reports do indeed verify drowning as the proximate cause of death, but was there an intervening cause beyond the control of the defendant which might have brought this about?
Let us suppose your near neighbor lights a bonfire during a strong wind which blows sparks onto your property, setting fire to your house. You would certainly find him negligent, not to say stupid, in that he should have known better. But suppose the day he lights his fire is still and calm, and only later a high wind suddenly rises carrying the fire's embers to your house and property with the same result. This is known as an intervening cause, since it acts upon a situation orginating with your neighbor but, as he would certainly argue, with a result he had not anticipated. How long had he lived there, and how familiar was he with the vicissitudes of the weather you inevitably shared, where a high wind might suddenly come up from nowhere on the finest of days? In other words, the standard of law regarding negligence embraces the idea of a risk to others which can be foreseen by a reasonable man, since if he cannot anticipate any harm coming from his actions, he can't be held liable for injuries that may result. Is the Pee Dee River known for sudden surges of its current at this particular site, in certain seasons, or at certain times of day, sufficient to sweep away the thrashing figure of an eighty pound boy? Or was this an abrupt departure from the river's habits brought on by flooding in the waters above, or by some other mighty force?
These factors are part of the evidence before you together with the defendant's testimony, supported by a veritable horde of witnesses, that innumerable such baptisms have been conducted at this site without dire consequences, and you are instructed to disregard as irrelevant that testimony citing the death of an unattended cow, two dogs, and the handful of pigs rumoured to have accommodated Jesus in Matthew 8:32 as latter day hosts to devils rushed to their destruction in these waters.
While under the law a suit for negligence places the burden of the standard of care on the defendant, it may also rest on another foot, however small, in this case that of the decedent Little Wayne as he was known to the community. How aware was he of the risk to himself posed by this ceremony, and whatever the degree or lack of his awareness did he consent to his part in it freely and voluntarily? There is a basic principle of the common law expressed in the Latin tongue as volenti non fit injuria. That means no wrong is done to someone who is willing, and if you know there are risks the law can't protect you from your own foolishness if you go ahead with it. From the evidence and testimony of witnesses, the decedent readily consented to undertake his part in this fatal ordeal, that he enthusiastically and even joyously embraced the prospect of baptism in the Lord's service and had, in fact, looked forward to that transforming moment from the tender age of four. Under the circumstances we cannot, of course, hear his own testimony as to his awareness, or the lack of it, of any risk he might face, and here the law is our guide.
Under the laudable doctrine of this venerable Christian sect from which it takes its name, baptism is deferred until an age when the candidate is believed able to understand the depths of this commitment, unlike those widespread cults of mainly foreign origin wherein infants are handed over to the designs of the Almighty well before they are weaned. Under the law, the age at which an individual is considered capable of the assumption of risk has varied from one court to another and is often set at fourteen, but it is usually a question for the jury to decide. In doing so however, the jury must realize that if he is capable of understanding the risk involved and goes ahead with it anyhow, he will share in the responsibility for its consequences, in this case his own destruction. This is called contributory negligence, and will largely relieve the defendant of his own. On the other hand, given the facts of a situation containing elements of duress, in other words of various pressures from family, friends and the community which a minor finds himself unable to resist, he has in effect been given a choice of evils by the defendant, and while his conduct may indicate his consent, the facts in the situation may persuade us otherwise. Consequently, the court here instructs the jury to find that the decedent will be found not to have assumed the risk, or to have relieved the defendant of the duty to protect him.
In discharging this duty of care placed on him by the law, we have no evidence that the defendant knowingly misrepresented any aspect of the situation to the decedent. Due to the swift current and the suddenness of its action we see no indication of a last clear chance when the decedent might have been saved or have saved himself. We have only conflicting testimony as to whether the defendant knew the boy could not swim, and the suggestion that alcohol may have played a part in the defendant's conduct has been stricken from the record. There are certain things we can never know, and during your deliberations you are urged to bear in mind the words of an eminent jurist of a bygone era. The law,' wrote Justice Holmes, 'takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason.'
Thus far we have gone on the premise that the defendant acted entirely on his own. At the same time however, we are all aware that he has never presented himself to this court, to the decedent or to the world at large as other than a willing and devoted servant of a most demanding master, to whom his life and works are dedicated. He is widely held as a servant in the Lord's employ, and a diligent member of his working staff.