Brickman v. Southern Ry.

• Citation: 54 S.E. 553,74 S.C. 306
• Parties: BRICKMAN v. SOUTHERN RY.
• Decision Date: 02 April 1906
• Court: United States State Supreme Court of South Carolina

54 S.E. 553

74 S.C. 306

BRICKMAN v. SOUTHERN RY.

Supreme Court of South Carolina

April 2, 1906

On Rehearing, May 1, 1906.

Appeal from Common Pleas Circuit Court of York County; Watts, Judge.

Action by Dorothy H. Brickman, administratrix, against the Southern Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

The following are the exceptions:

"(1) Because the presiding judge erred in admitting over the objection of defendants' counsel, the testimony of Dr. Miles Walker, which said testimony was as follows 'Q. Did you on that occasion (coroner's inquest) see the remains of Mr. Brickman? A. Yes, sir. Q. Doctor, please describe their condition. A. Mr. Brickman-- (Mr. Spencer: We object to that as irrelevant. It has come out time and time again, and we didn't object to it then. We object now. It doesn't bear on the issue at all. Mr. McCaw: Only on wounded feelings. The good wife and dependent children were informed of their ancestor's remains, so much so they couldn't look at them. Mr. Legare: We have a right to prove that his death was caused by the wreck, and I know no better witness than a physician. Mr. Spencer: The death is admitted in the answer. The Court: In addition to negligence they alleged wantonness and gross negligence. Go ahead.) Q. Describe the condition of Mr. Brickman's remains? A. Mr. Brickman was removed from underneath the engine, or possibly the boiler--I think, the boiler. The boiler had turned down the creek somewhat, and the legs of the two men were sticking out. The body of one was almost concealed, but the feet and part of the legs sticking out and remained in that condition until about dusk. I think the engine was removed from the body about dusk. When the engine was removed, the body was brought upon the hillside. We had it carried on the hillside and identified by some one as Mr Brickman. His watch was taken from his pocket, and had stopped at a certain time. His bowels-- He was very much mashed, crushed and cooked. His mouth was open, with a sardonic grin--a very hideous appearance of the face, and very much swollen at that time. The flesh seemed to be cooked; the bowels hanging out. Q. Doctor, were the remains shipped in that condition to Blacksburg? A. I don't know, sir. I left Mr. Brickman on the side of the hill when the inquest was finishing. We had the remains brought from the swamp, the mud; it was muddy and swampy where the engine was--at least wet, and the engine had pressed it down. We had it taken away from there and brought it on the side of the hill, where we could view the body better. Q. Where was the inquest held? A. The inquest was held at the wreck, and Doctor McDowell and myself left the remains there, and I didn't see him again.' The error being that the condition of Mr. Brickman's remains was not responsive to the issue of negligence, or gross negligence, or wantonness; nor was it responsive to the issue of wounded feelings, especially as the testimony entirely failed to show that there had been any injury from wounded feelings.

(2) Because the presiding judge, in his charge to the jury, erred in using the following language: 'Later on they come into court and admit that Mr. Brickman was in their employment as a locomotive engineer, and that he came to his death through negligence on their part. Then they say they admit that he died while in their employment, and they are willing for the jury to assess any actual damages that Mrs. Brickman has sustained by reason of her husband's death.' The error being: (a) That there was no admission, either in the pleadings, or in any paper submitted to the jury or otherwise, that the deceased came to his death through negligence on the part of defendants. (b) That if by such charge his honor alluded to the letter of May 23, 1904, the same had not been admitted in evidence, nor by its terms could it have been. (c) That, even if the said letter had been properly offered and received in evidence, it was not by its terms subject to construction by the presiding judge; nor did his honor have the right to charge the jury with reference thereto, the same being a mere matter of private arrangement between counsel of the respective parties, and intended by them as such. (d) That, even if the said letter was properly in evidence, his honor misconstrued the same as an admission of negligence, and charged the jury in terms to that effect. (e) That, in using such language in reference to said letter or otherwise, his honor charged upon the facts.

(3) Because the presiding judge erred in charging the jury: 'I charge you as a matter of law, that under the admission in this case you are bound to find some damages for the plaintiff, whatever actual damages she has sustained by the death of Mr. Brickman'; the error being that his honor had considered the letter of May 23, 1904, as a part of the testimony in the case, and assumed to construe the same, and to charge the jury with reference thereto, when, as a matter of fact, the same, by its terms, was not to be brought to the attention of the jury until after all the testimony was in, and then it was to be read to the jury by the counsel for plaintiff, not as evidence, but as an agreement made between the respective counsel in the case .

(4) Because the presiding judge erred in charging the jury that in estimating the actual damages done to the beneficiaries: 'You can also take into consideration any injury which these parties have sustained by reason of mental anguish or suffering by reason of the death of Mr. Brickman, and you also take into consideration any damages, if any, that they have sustained by loss of his companionship as a father and as a husband'--the errors being (a) that there was no evidence of injury either from (1) mental anguish or suffering, physical or mental, or from (2) loss of companionship; and (b) that the statute does not cover any such element of damage.

(5) Because the presiding judge erred in charging the jury as follows: 'Now, I charge you as a matter of law, if the testimony satisfies you that the authorities of this road knew that the roadbed or any of its trestles or anything of the sort were insufficient and unsafe, then it is for you to say whether that was a wanton, willful, reckless invasion of the plaintiff's rights;' the errors being (a) that his honor confined the consideration of the jury to mere knowledge of the condition of the road, and (b) that his honor failed to point out to what authorities such knowledge should have been traced, or for what length of time such knowledge should have been in possession of the defendants' officers in charge of such trestles or roadbed.

(6) Because the presiding judge erred in charging the jury that if the defendants' officers 'had any conscious knowledge, that is, if they had any knowledge of the fact that this roadbed was in an unsafe and unsuitable condition, and not in a reasonably safe and suitable condition, and they didn't repair it, it is for you to say whether that was a wanton, willful and high-handed invasion of Brickman's rights'; the errors being (a) in not charging the jury with regard to the time such knowledge should have come to the authorities, and the time in which they should have repaired it, and (b) in confining and limiting the consideration of the jury to mere knowledge of the fact of the nonrepair.

(7) Because the presiding Judge erred in again charging the jury: 'So, if the testimony satisfies you that this roadbed was in an unsafe and unsuitable condition, that it was not reasonably suitable and safe for the purposes of operating cars, it being the duty that the railroad owes to its employés, to keep its roadbed in a reasonably safe and suitable condition and in reasonably safe and suitable repair, it is for you to say, if they had knowledge of these facts and didn't repair the railroad, whether or not it is a wanton and willful and high-handed invasion of Brickman's rights'; the error being in allowing the jury, from the mere fact of knowledge that an appliance or means was in an unsafe and unsuitable condition, to find punitive damages for not repairing the same.

(8) Because the presiding judge erred in charging the jury: 'Now, I charge you wherever there is a wanton, willful, intentional, outrageous or high-handed invasion of a person's rights, that they are entitled not only to recover such actual damages as they have sustained, but such damages in the way of punishment as the jury see fit to

inflict, under the testimony in the case'; the error being in holding that the plaintiff was entitled, as of right, to punitive damages; whereas, it is submitted that the matter of punitive damages is purely a question of discretion for the jury under the statute.

(9) Because the presiding judge erred in submitting to the jury the question of exemplary damages or punitive damages at all, inasmuch as it is submitted that so much of the statute, approved February 27, 1902 (23 St. at Large, p. 1071), as allows such damages, contravenes the Constitution of this state and the Constitution of the United States, in that it deprives the defendants of their property and turns it over to strangers without due process of law.

(10) Because the presiding judge, before charging the defendants' third request (which was as follows: 'Third. In this case, no damages can be allowed for mental anguish or suffering or for wounded feelings, unless the proof shows that some physical or mental injury has been caused thereby to the beneficiaries'), had already charged the jury that in estimating damages, they could take into consideration the mental anguish or suffering, or the wounded feelings of the beneficiaries by reason of the death of Mr. Brickman; the error being that his honor failed expressly to

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