Osteen v. Railway , 76 S.C. 368 ( 1907 )

March 25, 1907. The opinion of the Court was delivered by This action was brought to recover damages, for the alleged wrongful death of plaintiff's intestate, Willie E. Osteen, by a passenger train, at a highway crossing near the outskirts of the city of Camden, S.C. on the 14th of December, 1903.

The complaint alleges that the crossing was hazardous in its nature, by reason of a close and extensive growth of trees and dense shrubbery, so located with reference to the line of railroad and public highway, as to prevent an observation, and totally obstruct a view of defendant's track north of said crossing, and a train approaching from a northerly direction, by one approaching the crossing, traveling from the city of Camden. That the vicinity of the crossing was, and for a long time prior to the accident, extremely populous; that the crossing was much traveled, and was in almost constant use by pedestrians and vehicles, all of which was in open view of the defendant. That the death of plaintiff's intestate was caused by the careless, negligent, reckless, wanton and wilful acts of the defendant, in running its train at a reckless rate of speed, and in failing to give notice, by the statutory signals or otherwise, of the approaching train.

The answer admits the collision, and that the plaintiff's intestate died in consequence thereof. It is, in effect, a denial of all the other allegations, except the allegations with reference to the trees and shrubbery, as to which it alleges that it is not the owner, and has no control over the same, but that they belong to the Upton Court Inn, which has them enclosed by a fence.

The defendant also interposed the following defense: "That plaintiff's intestate, the said Willie E. Osteen, at the time and place mentioned in the complaint, in failing to exercise any care or prudence to guard his own safety and failing to stop, look and listen before going upon the railroad track as he did, and in not heeding the signals given by bell and whistle by the train referred to, and in undertaking to cross in front of the train at the time and place and under the circumstances he did, was guilty of carelessness and negligence and also gross or wilful negligence, which contributed as a proximate cause to his death."

The jury rendered a verdict in favor of the plaintiff for $10,000.00, and the defendant appeals upon exceptions which will be reported.

First, second, third and seventeenth exceptions: These exceptions will be considered together. In the case of Bamberg v. R.R., 72 S.C. 389, 392, the rule is thus stated: "No doubt the failure to look and listen immediately before going on a railroad track, under some circumstances, would be held to admit of no other inference, than that the person injured was guilty of contributory negligence, and in such cases the Court would grant a nonsuit, on the principle announced in Jarrell v. Ry. Co., 58 S.C. 491,36 S.E., 910. But support is not to be found in principle or authority, for the proposition that it is contributory negligence, under all circumstances, not to look and listen before attempting to cross a railroad track. The view taken in this State is that it is ordinarily for the jury to say whether the attempt, without taking these precautions, was negligence."

There was testimony tending to show negligence both on the part of the plaintiff's intestate and the defendant, and the question was properly submitted to the jury.

Fourth exception: The complaint is not only for compensatory, but likewise for punitive damages, and testimony to the effect, that the defendant failed to give the signals required by Statute, was competent, on the ground that it was responsive to the allegations of recklessness. Mack v. R.R., 52 S.C. 323, 29 S.E., 905.

The appellant's attorneys were granted permission to review the case of Mack v. R.R., but this Court adheres to the rule therein stated.

Fifth exception: The defendant also presented the following requests:

"A person going upon a railroad track or going to cross a railroad track, is rigidly required to do all that care and prudence would dictate to avoid injury, and the greater the danger, the greater the care that must be used to avoid injury.

"There is no rule of law which relieves or absolves a person from looking out for the train, when he goes upon or to cross the railroad track. He must use ordinary care, and that involves the use of all `his senses.'"

These were changed, and even if there was error in refusing to charge the request set out in the exception, such refusal was not prejudicial.

Sixth and seventh exception: The appellant's attorneys have not cited any authorities to sustain these exceptions, and we deem it only necessary to state that there may be cases, no doubt, in which the request might properly be charged; when, however, as in this case, there was testimony tending to show negligence on the part of both parties, and there was doubt as to which was the proximate cause of the injury, the modification of the sixth request was proper, and there was no error in refusing to charge the twelfth request.

Eighth exception: The modification of the request simply allowed the jury to say whether the deceased exercised due care in his vigilance, and in this we fail to discover any error.

Ninth exception: The question presented by this exception has already been disposed of.

Tenth exception: The case of Hull as Administrator v. S.A.L. Ry., ante 278, is conclusive of this question.

Eleventh, twelfth and thirteenth exceptions: Section 2851, of the Code of Laws, is as follows: "Wherever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony."

Section 2852 provides that every such action shall be brought for the benefit of the wife, husband or child, "and in every such action the jury may give such damages, including exemplary damages, where such wrongful act, neglect or default was the result of recklessness, wilfulness or malice, as they may think proportioned to the injury."

An action for damages founded upon a wrongful act causing death, did not exist at common law, and is wholly dependent upon the statute. The words: "including exemplary damages where such wrongful act, neglect or default was the result of recklessness, wilfulness, or malice," were not originally in the statute, but were inserted as an amendment in 1902. Prior to the amendment, it was held that only compensatory damages were recoverable.

Garrick v. R.R., 53 S.C. 448, 31 S.E., 334.

The action permitted by the statute is not the survival of an action which the deceased had in his lifetime, but is a new cause of action.

In re Estate Mayo, 60 S.C. 401, 38 S.E., 634, affirmed in Morris v. Gas Co., 70 S.C. 279, 49 S.E., 854, it was held, being a new action entirely dependent upon the statute, it was necessary for the Legislature to indicate upon what basis the damages should be assessed by the jury. The provision that in every such action the jury was empowered to give such damages, including exemplary damages, as they might think proportioned to the injury, was not intended, in any manner, to change the measure of damages existing at the time the statute was enacted, but simply to make plain that the damages were founded upon the injury, and that they should be just and fair.

In other words, before the amendment of 1902, the plaintiff was entitled to compensatory damages just as in other cases founded upon injury, Garrick v. R.R., 53 S.C. 448,31 S.C. 334, and since the said amendment, the plaintiff may also recover such punitive damages as the jury in their discretion think are just and fair, in view of all the circumstances attending the particular case. Brickman v. R.R.,74 S.C. 306.

Fourteenth exception: There was testimony tending to prove the facts set out in the complaint, and this question was properly submitted to the jury.

Fifteenth and Eighteenth exceptions: The appellant's attorneys in their argument state that, since the appeal was perfected, this Court has considered the question raised by these exceptions in the case of Cole v. Ry.,75 S.C. 156, which shows that they cannot be sustained.

Sixteenth exception: The presiding Judge charged that "gross negligence is equivalent to the absence of slight care. If, therefore, at the time of the collision, the deceased did not exercise slight care to avoid the collision, and such negligence contributed to his injury, the plaintiff cannot recover."

He also read to the jury section 2139, of the Code of Laws, which provides that the railroad corporation shall be liable in the manner therein provided, "unless it is shown that in addition to a mere want of ordinary care the person injured * * * was at the time of the collision guilty of gross or wilful negligence or was acting in violation of law; and that such gross or wilful negligence or wilful act contributed to the injury."

It will be seen that the presiding Judge, in effect, charged the proposition for which the appellant contends.

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