Bowers v. Charleston & W. C. Ry. Co.

• Decision Date: 16 May 1947
• Docket Number: 15949.
• Parties: BOWERS et al. v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

42 S.E.2d 705

210 S.C. 367

BOWERS et al. v. CHARLESTON & W. C. RY. CO.

No. 15949.

Supreme Court of South Carolina

May 16, 1947

Appeal from Common Pleas Court of Hampton County; M. M. Mann Judge.

Action by W. B. Bowers and Mrs. Alma Bowers, as administrators of the estate of Walter Rodell Bowers, deceased, against Charleston & Western Carolina Railway Company, to recover damages on account of conscious pain and suffering undergone by plaintiffs' deceased son from time of his injury when struck by defendant's train until his death approximately twenty minutes thereafter. From a judgment for plaintiffs, the defendant appeals.

Unless amount of verdict is so excessive as to indicate that it was result of prejudice, caprice or passion, or other considerations not found in evidence, trial judge alone is vested with power to set it aside, absolutely or conditionally.

M. G. McDonald and Howard L. Burns, both of Greenwood, and J. W. Manuel, of Hampton, for appellant.

George Warren and Randolph Murdaugh, both of Hampton, for respondents.

BAKER Chief Justice.

At a public street crossing very near to the depot of the appellant in the Town of Hampton, at about 9 o'clock a.m., on June 24, 1944 respondents' intestate, Walter Rodell Bowers, a boy ten years of age, was fatally injured in a collision with one of appellant's through freight trains, from which injury he died within twenty minutes. An action was brought against the appellant for his wrongful death, resulting in an award of damages in the sum of $3,000, which award was paid.

Thereafter, an action was commenced by the respondents against the appellant, to recover damages on account of the conscious pain and suffering undergone by the said Walter Rodell Bowers, deceased, from the time of his injury until his death, approximately twenty minutes, as aforesaid.

Upon a trial of this case in the fall of 1945, at the close of all the testimony, appellant moved for a direction of verdict in its behalf both as to actual and punitive damages, on several grounds, but in the light of the exceptions now before the Court, it is necessary that we refer to only one, to wit, that there was no evidence of any conscious pain and suffering between the injury and death, except such as was substantially contemporaneous with death or merely incidental thereto.

The motion was refused, and the jury returned a verdict in behalf of the respondents in the sum of $10,000 actual damages, and for the sum of $15,000 punitive damages. Motions for judgment for appellant, non obstante veredicto, and for a new trial, were made. The first of said motions was refused outright, and the second was refused conditioned upon the respondents remitting upon the record the sum of $5,000 of the judgment to be entered on the amount awarded for punitive damages, which amount was duly remitted by the respondents, and judgment entered accordingly. This appeal followed.

The exceptions of the appellant raise the issues (1) that there was no evidence from which it could be inferred that respondents' interstate suffered any conscious pain between the time of the collision and his subsequent death (approximately twenty minutes), such evidence as there was tending to so prove, being wholly speculative and conjectuaral; and that such pain as the decedent may have suffered was substantially contemporaneous with death or merely incident thereto; (2) that the jury's verdict was so excessive as to indicate that it was the result of prejudice, caprice, passion, or some other consideration not founded in the evidence, and that the overruling of its motion for a new trial constituted abuse of judicial discretion; (3) improper argument by one of respondents' counsel; and (4) alleged error in the trial Judge's charge to the jury.

It will be seen from the foregoing, and from a secondary appeal in reference to the settlement of the case for appeal, that no issue is raised as to the negligence and willfulness of the appellant.

The decision of this case has given the members of this Court grave concern, except as to the excepting relating to the alleged improper argument of Mr. Murdaugh, of counsel for respondents. If Mr. Murdaugh used the language attributed to him, the objection thereto should have then and there been made accompanied by a motion that a mistrial be ordered, but such was not called to the attention of the trial Judge by objection or otherwise until after the rendition of the verdict by the jury and on the hearing of the motion for a new trial; and said counsel does not admit that he used even substantially the language attributed to him.

The testimony is both meagre and weak that the deceased, in the short space of time between his injury and death, suffered conscious pain, but we are bound to view the testimony, on a motion for a directed verdict (as was the Circuit Judge), in the light most favorable to the respondents (plaintiffs), and if there is more than a scintilla of evidence from which the jury could draw a reasonable inference that the decedent was conscious of pain and suffering, this issue had to be submitted to the jury. When the engine and train of cars collided with the respondents' intestate, he was lodged on the front of the engine and carried about thirty-two car lengths down the track. Henry Shepperd, a witness for the respondents, who helped bring the injured boy back to the crossing near the depot of the appellant, where the collision occurred, testified that the injured boy was whining and drawing up, and expressed the positive opinion (without objection) that the boy was suffering; and another witness, A. J. Nix, in whose automobile the injured boy was placed and transported to a physician's office, testified that he groaned after he had him in his car and was apparently struggling for breath, and that he moaned two or three times when his automobile reached another crossing, and had to wait for the train to clear the crossing. Dr. A. J. Hayne, the physician to whose office the boy was carried, testified that when he gave the boy a hypodermic to stimulate him, he jerked his arm up and that could have indicated that he reacted or felt pain from the insertion of the hypodermic needle in his arm; but he also testified that this could have been a possible reflex action of the nerves and muscles, and refused to give an opinion if at that time the boy was conscious or unconscious. (It might be noted in passing that the testimony of Mr. Shepperd and of Mr. Nix was not uncontradicted.)

In the case of Peeples v. Seaboard Air Line Railway, 115 S.C. 115, 104 S.E. 541, 542, it was held that even if Mr. Peeples could not speak after his injury 'he asked to have his shoe taken off, because it hurt him, and, when asked if he wanted water, he bowed his head.' (We assume that the Court meant in stating that he asked to have his shoe taken off that he indicated that this is what he wanted; otherwise there would not have been any occasion for stating that 'even if he couldn't speak, etc.') The testimony in the Peeples case clearly showed conscious pain and suffering on the part of Peeples. In the case of Camp v. Petroleum Carrier Corporation et al., 204 S.C. 133, 28 S.E.2d 683, there was testimony from which it could be inferred that the deceased, Clyde M. Camp, groaned after his injury, but this Court held that there was no evidence that he was conscious of pain and suffering. In the most recent case decided by this Court on the question of conscious pain and suffering, to wit, Croft v. Hall, 208 S.C. 187, 37 S.E.2d 537, the Court remarked that the factual showing was weak but that there was more than a scintilla of evidence tending to prove that the intestate consciously suffered and quoted testimony from the mother of the injured girl, wherein she testified that she could hear her daughter making terrible noises, she was talking, and her knee and leg were going, and that in her opinion if anybody ever suffered her daughter did, and further that in her opinion her daughter recognized her and opened her eyes and looked at her several times.

The evidence of conscious pain and suffering by the decedent in the instant case is stronger than was the evidence in Camp v. Petroleum Carrier Corporation, supra, though much weaker than the evidence in Peeples v. S. A. L. Railway, supra, and Croft v. Hall, supra. At best, it is a 'hair line' case, but under our system of jurisprudence there was, viewing the testimony in the light most favorable to the respondents (plaintiffs), sufficient evidence to require the submission of the case to the jury.

The large amount of the verdict, especially considering the short space of time which the deceased survived the injury, has given the Court great concern. In 1915, a verdict for $5,000 damages for pain and suffering was affirmed by the United States Supreme Court in St. Louis I. M. & S R. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160, where the injured party survived the injuries for thirty minutes. The Court there stated that the award did seem large for so short a period of time, but that the duty and responsibility of dealing with that matter rested upon the Courts below. While this is to a considerable measure true when this Court is dealing with excessive verdicts rendered and permitted to...