Stuckey v. Atlantic Coast Line R. R.

April 8, 1901. The opinion of the Court was delivered by This action was brought by the plaintiff and administrator of Sarah P. Dixon, deceased, against the Atlantic Coast Line Railroad Company of South Carolina, to recover damages for the alleged negligent killing of his intestate by the defendant company, for the benefit of the children of the deceased, under the provisions of an act, usually designated as "Lord Campbell" act, incorporated as sections 2315-2318 of the Revised Statutes of 1893. It appears from the "Case" that a motion was made before his Honor, Judge Buchanan, by the defendant company to strike out paragraph V. of the complaint, upon the ground that the allegations therein contained were irrelevant to the case as made by the complaint. This motion was refused, which was duly excepted to by defendant company, and notice of intention to appeal therefrom upon the rendition of the final judgment. Subsequently thereto the defendant company filed its answer, in which, "protesting against being required to join issue upon allegations contained in paragraph V. thereof [the complaint] and reserving the right to object to all testimony relating thereto, it denies the truth of the allegations contained in said paragraph V. thereof." The case came on for trial before his Honor, Judge Townsend, and a jury, and a verdict having been rendered in favor of the plaintiff, the defendant moved for a new trial on the minutes, which was refused; and defendant gave notice of intention to appeal from the judgment entered upon the verdict, as well as from the order of Judge Buchanan, above referred to, and the order of Judge Townsend refusing the motion for a new trial upon the minutes, upon the exceptions set out in the record — which, together with the charge of the Circuit Judge, should be reported with this case.

These exceptions substantially raise the following questions: 1st. Whether there was error on the part of Judge Buchanan in refusing the motion to strike out paragraph V. of the complaint. 2d. Whether there was error on the part of Judge Townsend in his ruling as to the admissibility of certain testimony. 3d. Whether there was error in the charge to the jury either of omission or commission.

For a proper understanding of the first question, it will be necessary to set out paragraph V. of the complaint, as well as to state the nature of the case as made by the complaint. So much of the allegations of the complaint as are pertinent to this immediate inquiry may be substantially stated as follows: That on the 1st of October, 1898, plaintiff's intestate purchased a ticket from Sumter to Bell's Crossing, and boarded the defendant's train at Sumter as a passenger, to be carried to Bell's Crossing; that when the train reached. Bishopville, a railroad station between the city of Sumter and Bell's Crossing, the forward portion of the train attached to the engine was separated from the passenger coach, in which intestate was seated, and the same was left standing on the main track, while the other portion of the train to which the engine was attached, was moved off to a side track; and that when the engine was brought back on the main track for the purpose of being coupled to the passenger coach, it was run back so rapidly and with such great force and violence as to throw the intestate upon the floor of the coach, whereby she sustained serious bodily injuries, which resulted in her death on the 6th day of November, 1898. Paragraph V. of the complaint reads as follows: "That plaintiff is informed and believes that from time to time, for ten days before the said collision at Bishopville on the said 1st day of October, 1898, a portion of said train to which the engine was attached had been, negligently and without due regard to the lives and safety of the passengers on said train, run against that portion of said train to which the passenger coach was attached, and the conductor of said train of cars had been warned by a passenger on said train, on or about the 21st day of September, 1898, that unless more care was taken by his engineer in striking the said two portions of said train together, some passenger would be seriously injured. That notwithstanding said warning, the portion of the train to which the engine was attached was run against the portion of the train to which the passenger coach was attached on the said 1st day of October, 1898, as above referred to." It seems to us that these allegations were not irrelevant to the case as made by the complaint; for if true, they tended to show that the very thing which it was alleged caused the injury complained of in this case had been called to the attention of the conductor but a few days before, as dangerous; and that notwithstanding such warning, a few days afterwards the disaster complained of did occur from the very same cause which the conductor had been warned was likely to produce such a result. We do not think that there was any error on the part of Judge Buchanan in refusing the motion to strike out the fifth paragraph of the complaint, for irrelevancy. The first exception is overruled.

Proceeding then to the second general question, as to errors in the ruling as to the competency of testimony — the second, third, fourth and fifth exceptions are based upon objections to the testimony of the witnesses, W.R. Law, B.A. Pressley and R.E. Carnes, who were offered to sustain the allegations of paragraph V. of the complaint; and what we have already said, in considering the first exception, is sufficient to dispose of these exceptions. For if the allegations in that paragraph are pertinent to the issues, then, of course, any testimony (otherwise competent) tending to sustain such allegations would be competent — that is to say, could not be held to be irrelevant. We may add, however, in reference to the third exception, that even if the Circuit Judge did give an unsound reason for his ruling (as to which we need not inquire), that would not affect the question; for, as has been frequently held, the question for this Court is whether the ruling of judgment appealed from is right, and not whether the reasons given for such ruling or judgment are sound. And as to the fifth exception, we may add that when it was developed that the testimony of the witness, Carnes, as to violent shocks in coupling cars, did not relate to occurrences within the ten days mentioned in the fifth paragraph of the complaint, that portion of his testimony was ruled out. Exceptions two, three, four and five are overruled.

The sixth exception imputes error in allowing the witness, Mrs. Kelly, a daughter of the deceased, to testify as to the suffering her mother endured by reason of the injures she received, and the effect of such suffering upon the witness, upon the ground "that the suffering of Mrs. Dixon formed no part of the cause of action of the plaintiff." While it is true that the Circuit Judge did, in the first instance, overrule this objection, yet such error (assuming it to have been an error) was rendered absolutely harmless by the positive instruction given to the jury, that they could not consider as an element of the damages in this case, either the sufferings of the deceased, or the grief of the beneficiaries, or any one of them, occasioned by witnessing such sufferings. For the Circuit Judge expressly charged defendant's fifth request, which was as follows: "No matter how much Mrs. Dixon, the deceased, may have suffered from the time of the alleged injury to the time of her death, this is not a proper element of damage, and the jury cannot take that into consideration in making up its verdict." And he emphasized this instruction by adding the following words: "I charge you that, no matter how much she suffered, you cannot consider her suffering as a part in making up your verdict as to damages." And he also charged defendant's eighth request in these words: "The jury cannot take as an element of damage the grief suffered by the children of Mrs. Dixon, or any of them, occasioned by witnessing her suffering." So that even conceding that there was error in the ruling as to the admissibility of the testimony of Mrs. Kelly, such error was rendered entirely harmless by these explicit instructions to the jury.

Exceptions seven, eight and nine will be considered together, as they all impute error to the Circuit Judge — to use the language of counsel for appellant in his argument here — "in refusing to charge the jury that they could not take into consideration the wounded feelings of the beneficiaries, their grief and sorrow, and in charging them that the jury might take them into consideration, if they found that there was grief and that it produced an injury." It seems to us that the question presented by these exceptions has been conclusively settled by the views presented in the case of Nohrden v. Northeastern Railroad Co., 59 S.C. Rep., 87. But counsel for appellant has, according to the proper practice, asked and obtained leave to review that case; and we have thus had the benefit of a full and elaborate discussion of this question, on both sides, to which we have listened with much interest. We must say, however, that we see no reason for departing from the view taken in Nohrden's case, based as it is on the express terms of our own statute, as construed in the previous case of Petrie, Strother and the other cases cited in the case of Nohrden, which carried to their logical result the views presented in the preceding cases; and we do not deem it at all necessary to go over the argument again. Exceptions seven, eight and nine are overruled.

The tenth exception, which imputes error to the Circuit Judge in refusing the motion for a new trial on the minutes, is disposed of by what has already been said, and must, therefore, be overruled.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.