Bodie v. Railway Co.

May 18, 1903. The opinion of the Court was delivered by Statement of facts. — The allegations of the complaint, material to the consideration of the questions raised by the exceptions, are as follows:

"II. That at the time hereinafter mentioned and for a long time prior thereto, the plaintiff was employed by the said defendant as section foreman upon section 18 of defendant's said line of railroad, and as such foreman was ordered and required, in addition to the other duties imposed upon him, to haul and put in piles upon the side of said railroad, certain steel rails, which had been taken up from said track and cast alongside the same.

"III. That during the summer of 1899, the said defendant furnished to the plaintiff a force of six section hands to do the ordinary and usual work required on said section, but prior to giving the special orders to haul and pile the said steel rails, the said defendant had reduced plaintiff's force of hands to three, and had required plaintiff to take the place of a hand and assist in all such work as required the services of more than three men.

"IV. That when the plaintiff was ordered and required by the defendant to haul and pile the said steel rails, he requested the said defendant to send him more help, protesting that the said steel rails were entirely too heavy (each one of them weighing 600 pounds or more) for the three hands and himself to handle, whereupon the said defendant promised two more men to assist in the said work, in the meantime requiring plaintiff to do and perform the same.

"V. That it was the defendant's duty to furnish to the plaintiff proper appliances and the help necessary to do and perform the work assigned to him and required of him, and notwithstanding its said promise, it wilfully and negligently and carelessly disregarded its duty to plaintiff and his request for more help, and failed to furnish to the plaintiff a sufficient force of hands to do the work required of him, and that such negligence of the defendant was the direct cause of the injury to the plaintiff hereinafter set forth and alleged.

"VI. 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 his 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, by which his right leg was knocked out of place, his back injured, and a great strain put upon his whole body, causing a lesion of his kidneys and other internal organs."

Upon the first trial the jury rendered a verdict in favor of the plaintiff for $2,400, but on appeal the Supreme Court granted a new trial (61 S.C. 468, 39 S.E., 715). When the case was tried the second time, the jury found a verdict in favor of the plaintiff for $1,000, which was set aside by the presiding Judge, on the ground that if the plaintiff was entitled to recover any sum at all, the said amount was inadequate. On the third trial the verdict was in favor of the plaintiff for $3,000. The defendant appealed upon exceptions, which will be reported.

Opinion. — First exception. This exception raises the question whether his Honor, the Circuit Judge, had the power to grant a new trial for inadequacy in the amount of the verdict. Section 2734 of the Code of Laws provides that "Circuit Courts shall have 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 in this State." Section 286 of the Code of Procedure, in subdivision 4, contains the provision that "the Judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or forinsufficient evidence, or for excessive damages, but such motions, if heard upon the minutes, can only be heard at the same term at which the trial is had" (italics ours). While 14 Enc. of Pl. Pr., 764, does contain the language quoted in the opinion of Mr. Chief Justice Pope, under the head of "Inadequate Damages for Torts — Common Law Rule," it also adds immediately thereafter these words: "But the modern rule is that a new trial may be granted, in actions for torts, where the verdict is grossly inadequate, for the same reasons as those governing where the verdict is excessive." And under the head of "Code Provisions," on page 766, it also says: "The Code provisions as to new trials for inadequate damages appear in general to be merely declaratory of the common law. In some States the Codes have been amended so as to permit new trials where the verdict is so inadequate as to indicate passion or prejudice. In the absence of such amendment, a new trial may be granted for inadequate damages, on the theory that the verdict is contraryto the evidence (italics ours). In 16 Ency. of Law, 591 (1st ed.), it is said: "Where a verdict gives grossly inadequate damages to a plaintiff, it is as much a ground for a new trial upon the motion of the plaintiff as a verdict for excessive damages would be, upon the motion of the defendant." In a note on the same page, the following language is quoted from McDonald v. Walter,40 N.Y., 551: "A verdict for grossly inadequate amount stands upon no higher ground in legal principle nor in the rules of law or justice than a verdict for excessive or extravagant amount. It is doubtless true, that instances of the former occur less frequently because it is less frequently possible to make it clearly appear that the jury have grossly erred. But when the case does plainly show such a result, justice as plainly forbids that the plaintiff should be denied what is his due as that the defendant should pay what he ought not to be charged." The case of Benton v. Collins, 47 L.R.A. (N.C.), 33, is well considered and fully sustains our views upon this question.

The cases from our reports, cited in the opinion of Chief Justice Pope, while showing that the courts should cautiously exercise the right to grant new trials for inadequacy in the amount of the verdict, nevertheless clearly lay down the principle that the Court has the power to grant a new trial in such cases. See, also, Stuckey v. R.R., 57 S.C. 395, 38 S.C. 550, and cases therein cited, which even show that the Circuit Judge may, in his discretion, impose conditions upon granting a new trial.

Second exception. Assignments of error "a," "b," "c" and "d" will be first considered. The only ground of objection interposed by the defendant to the introduction of the testimony on the trial of the case, in the Circuit Court, was that it was incompetent. This objection failed to specify in what particular the testimony was inadmissible, and is, therefore, too general to be considered. But waiving this objection and considering the grounds set forth in the exceptions, they cannot be sustained, as the testimony was explanatory of the method for operating the appliances.

Assignment of error "e." In the first place, the witness testified that a larger force of hands would not have been safer in this case; and, in the second place, the testimony was responsive to the issues made by the pleadings.

Third exception. The jury informed his Honor, the presiding Judge, that they had decided that it would be of no benefit to them to visit the place where the accident occurred. It was wholly within the discretion of the presiding Judge whether he would send the jury to view the place where the injury occurred, and under the circumstances his discretion was properly exercised.

Fourth exception. When the presiding Judge spoke of "this extra work," he did not mean to decide the question of fact, but only to refer to the extra work mentioned in the pleadings, which he had just explained to the jury, and which he pointed out as an issue in the case.

Fifth exception. The charge embodied a sound proposition of law, and if the defendant desired further explanation of the principle therein stated, it should have prepared requests to that effect.

Sixth exception. The charge mentioned in this exception is to be considered in connection with other portions of the charge. By reference to the charge set out in the seventh exception, it will be seen that the appellant had the benefit of the principle as the proximate cause of the injury.

Seventh exception. The charge as modified conformed to the principle stated in Harrison v. Berkeley, 1 Strob., 525 (cited with approval in Pickens v. R.R., 54 S.C. 503,32 S.E., 567), in which the Court says: "It is required that the consequences to be answered for, should be natural as well as proximate. By this I understand, not that they should be such as upon a calculation of chances would be found likely to occur nor such as extreme prudence might anticipate, but only that they should be such as have actually ensued one from another, without the occurrence of any such extraordinary conjunction of circumstances or the intervention of any such extraordinary result, as that the usual course of nature should seem to have been departed from."

Eighth exception. The presiding Judge said: "I refuse to charge you that, that way. I charge you that request as follows: `If the jury believe that the cause was the accidental falling of one of plaintiff's coworkers, and that this fall, I have added, or its consequences was not due to the negligence of the railway company, then the plaintiff cannot recover.'" The authority last cited sustains the charge as modified.

Ninth exception. His Honor said: "I cannot charge you that way, but I charge you that with this modification, and you will pay attention now to the charge as I now read it to you: `If the jury believe that the force of hands furnished the plaintiff was sufficient and safe for doing the work in hand in a different way from that which he adopted, then the plaintiff cannot recover, if the evidence shows that his injury resulted from his negligence, from his negligent use of the force for the work in a more dangerous way, unless the evidence also shows that he was directed or required by his employer to adopt such more hazardous way.' That is for you. Take into consideration the facts as they presented themselves to plaintiff on that occasion. 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.R. Co.,60 S.C. 9, 38 S.E., 232, shows that the request to charge was properly refused, in which the Court uses this language: "Sec. 15, art. IX., 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 employee 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 defendantthat failed to furnish suitable machinery, the right to defeat an action by the employee 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.

MR. JUSTICE JONES concurs.