Brown v. Southern Ry.

February 25, 1903. The opinion of the Court was delivered by This action to recover damages for the killing of Martin Brown, plaintiff's intestate, by the defendant, on October 24th, 1900, was tried in the Court of Common Pleas for Union County, before Honorable R.C. Watts. The jury found a verdict for the plaintiff for one thousand dollars, and defendant appeals. For the purposes of this discussion it is only necessary to say of the pleadings that the complaint, in substance, alleged that defendant had obstructed a highway at Blairs with a train of cars for more than fifteen minutes; that Martin Brown, desiring to cross the railroad on the highway, undertook to go over the bumpers between the cars, as others were doing within the observation of defendant's agents, when the agents of the defendant gave two quick sounds of the whistle, and simultaneously moved the car with great violence, throwing Brown to the ground between the cars, where he was crushed to death. The defendant denied the allegations of the complaint, and alleged contributory negligence of deceased.

The first ground of appeal alleges error by the presiding Judge: "In not permitting the witness, S.T. Clowney, to testify to the statements of Martin Brown as to the efforts Brown's children had been making in trying to get his property from him. The error being that this being a statement of one through whom the children were claiming as beneficiaries, it was competent and relevant to prove this statement on the question of the amount of damages and in mitigation thereof." The fallacy of the position taken in this exception consists in assuming that those to be benefitted by any recovery in this action were in any legal sense claiming through the deceased. This action under Lord Campbell's Act is not a revival or continuance of any action the decedent would have had if his injuries had not been fatal. In re Estate of Mayo, 60 S.C. 401, 38 S.E.R., 634. Besides, the declaration which the defendant proposed to prove the deceased had made as to his children trying to get his property from him would not have been against his interest, if he had survived and brought an action for injuries, and it would have been quite irrelevant to the issue in such action. This declaration, therefore, was not at any time against the interest of the person who may have made it, and certainly could not be proved in this case against a party suing on a cause of action which is not a revival of any cause of action the declarant might have had if he had survived.

The second exception assigns error in the charge to the jury because, as appellant construes the language of the presiding Judge, the jury were instructed they might find damages for mental suffering or shock to the affections without proof of injury resulting from such suffering or shock. On this point the charge was in precise accordance with the law as stated in Nohrden v. R.R. Co., 59 S.C. 87, 37 S.E.R., 228; and Stuckey v. R.R.,60 S.C. 253, 38 S.E.R., 216. In the charge sustained in the latter case the jury were instructed they might find damages for "injury" produced by grief, and in this instance the word used was "loss" instead of "injury," which was practically an equivalent word in this connection. In addition to this, at the request of defendant, the jury were instructed: "Even if the deceased was killed by the negligence of the defendant, still the verdict must not exceed the actual amount of the injury done the beneficiaries, and if they have not been injured, then the verdict must be for the defendant." The appellant in this exception also insists the Circuit Judge should not have submitted to the jury the question of damages for mental suffering, because there was no evidence of such suffering. The family relations of the deceased were brought in issue and a number of witnesses testified on the subject. The defendant undertook to show the life of the deceased lacked both pecuniary and sentimental value to those claiming damages for his death. The issue thus made was necessarily submitted to the jury. Strother v. R.R. Co., 47 S.C. 375, 25 S.E.R., 272.

As we understand, appellant makes three questions in the third exception. It is contended, first, that section 2132 of the Civil Code applies only where a railroad train is approaching a public way of the character mentioned in the statute, or has come to a stop before the engine has reached the crossing, and not where it has come to a stop across such public way after the engine has passed it, without intention of those having it in charge that it should return. The following is the section under consideration: "A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and such bell shall be rung, or such whistle sounded, by the engineer or fireman, at the distance of at least five hundred yards from the place where the railroad crosses any public highway or street or traveled place, and be kept ringing or whistling until the engine has crossed such highway or street or traveled place; and if such engine or cars shall be at a standstill, within a less distance than one hundred rods of such crossing, such bell shall be rung, or such whistle sounded, for at least thirty seconds before such engine shall be moved; and shall be kept ringing or sounding until such engine shall have crossed such public highway or street or traveled place." Code, 1902, sec. 2132. It might be sufficient to say this question has been decided adversely to the view of the appellant in Littlejohn v.R.R. Co., 45 S.C. 181, 22 S.E.R., 789; and Littlejohn v.R.R. Co., 49 S.C. 16, 22 S.E.R., 767; Burns v. R.R. Co.,61 S.C. 409, 39 S.E.R., 567; but appellant asked and received permission to review those cases. The argument of appellant that the last clause of the statute requiring the signals to be continued "until the engine shall have crossed such public highway or street or traveled place," coming just after the provision requiring that the bell shall be rung or the whistle sounded for at least thirty seconds when the engine or cars are at a standstill before it shall be moved, indicates that the statute applies only when the engine has not crossed the public way, is not without apparent force. It will be observed, however, that the clause of the statute relating to an engine or cars at a standstill is in itself perfectly clear and free from ambiguity. It plainly provides if the engine or cars are at a standstill, or being at a less distance than one hundred rods of such crossing, then the signals must be given at least thirty seconds before the engine shall be moved. To hold that this provision of the statute has no application when the engine has already crossed the public way, because a succeeding clause, separated from it by a semi-colon, provides for the continued ringing of the bell or sounding the whistle until the engine shall have crossed such public way, would be limiting the plain words of this portion of the statute by inference from words used in a succeeding clause not necessarily inconsistent. The last clause of the statute manifestly has no application when the engine has already crossed the public way; but it is not sufficient to limit the preceding clause, requiring the signal to be given for at least thirty seconds before the engine is moved, to cases where the engine has not crossed the public way. To sustain this view, we do not think it necessary to depart from the strict construction of the statute.

The appellant in this exception further insists that the presiding Judge was in error in submitting the last clause of the statute to the consideration of the jury, because the engine having already crossed the alleged highway, the provision requiring the signals to be continued until the engine should cross, had no application. It will be observed the presiding Judge did not state this portion of the statute had any application to the facts of the case. He did not even take for granted the engine had passed, but left all the facts to the jury. It is true, he recited the whole section and charged the entire law which it enacted, but this certainly could not prejudice either party, because the jury could not have based their verdict on any failure of defendant to give signals before crossing the alleged public highway, when there was no testimony whatsoever that there was any violation of the law in this regard, and there was no issue of this kind made either in the pleadings or the evidence.

The third objection to the charge made by appellant in this exception, is that the presiding Judge "assumed as a matter of fact that there was an engine and cars of the defendant company at or near a public highway when the alleged injury occurred." The nature of the crossing was one of the questions in the case, and we are unable to find in the charge any assumption that it was a public highway. The presiding Judge did refer to the engine and cars, but it is manifest no intelligent charge in this case could have been made without doing so. The constitutional provision on this subject does not require the Circuit Judge to deal in abstractions. He may not state the facts, but it was not intended that he should be forbidden to vitalize the case in the minds of the jury by reference to objects around which the evidence clusters.

The appellant insists in his fourth and fifth exceptions that the charge was defective in not containing a statement of the doctrine of contributory negligence at common law. Examination of the charge does not sustain this exception. In the body of the charge it was said: "I charge you as a matter of law they had a right to stop on the highway, if it was a highway, for a reasonable length of time; but if they stopped there an unreasonable time, then the plaintiff has a right to cross that train, provided he observes due care and caution to not contribute to any injury that may be brought to himself by crossing that train." The appellant's fourteenth, fifteenth and sixteenth requests to charge, which were all allowed, were intended also to cover the common law of contributory negligence applicable to the case. The appellant does not allege either in his exceptions or argument that the Circuit Judge was in error in anything that he charged on this subject, but that he failed to charge on the subject at all. It seems to the Court the appellant has fallen into an erroneous impression as to the fact, for the views of the Circuit Judge on this subject were given to the jury in his charge, and they were by no means unfavorable to appellant.

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

Argued before full Court, R.