Moseley v. Carolina, C. & O. Ry. of South Carolina

• Citation: 91 S.E. 380,106 S.C. 368
• Decision Date: 10 February 1917
• Docket Number: 9607.
• Parties: MOSELEY v. CAROLINA, C. & O. RY. OF SOUTH CAROLINA ET AL.
• Court: United States State Supreme Court of South Carolina

91 S.E. 380

106 S.C. 368

MOSELEY v. CAROLINA, C. & O. RY. OF SOUTH CAROLINA ET AL.

No. 9607.

Supreme Court of South Carolina

February 10, 1917

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by Lillie V. Moseley against the Carolina, Clinchfield & Ohio Railway of South Carolina and another. Judgment for defendants, and plaintiff appeals. Affirmed.

The sixth request to charge was as follows:

(6) The statute law of South Carolina requires railway companies to ring the bell or blow the whistle continuously for a distance of 500 yards of trains before passing over any public crossing, and, if a railroad fails to give these signals, the jury would be warranted in considering the omission of the railroad to so give these signals in determining and considering the question of reckless operation of the train so failing to give the signals, and in determining the question of punitive damages. Mack v. Railway, 52 S.C. 325, 29 S.E. 905, 40 L. R. A. 679, 68 Am. St. Rep 913; Mason v. Railway, 58 S.C. 70, 36 S.E. 440, 53 L. R. A. 913, 79 Am. St. Rep. 826; Goodwin v Railway, 82 S.C. 321, 64 S.E. 242. I refuse to charge you 6. It is a charge on the facts.

The fifth and sixth exceptions referred to are:

(5) In refusing plaintiff's eighth request to charge, which was as follows:

"I charge you, gentlemen, that mental suffering and injury to a person's nervous system resulting directly and proximately from a physical injury, no matter how slight the injury may be, are such elements of damage as should be properly considered by the jury in determining damages. Mack v. Railway, 52 S.C. 334 [29 S.E. 905, 40 L. R. A. 679, 68 Am. St. Rep. 913]."

"I charge you further that you have a right to consider in estimating damages an attack of sudden fright or an exposure to imminent peril in determining damage to the nervous system. It has been held by the Supreme Court of your state in Mack v. Railway that a sudden attack of fright or an exposure to imminent peril might render one who was physically strong and vigorous weak and timid. It is for you to apply the facts in this case as you view them. Mack v. Railway, 52 S.C. 335, 29 S.E. 905, 40 L. R. A. 679, 68 Am. St. Rep. 913. I refuse to charge 8, both sections. It is charging on the facts."

(6) That his honor erred in failing to charge the propositions of law contained in plaintiff's fifth, sixth, and eighth requests, in his own language, or to modify the said requests and charge them.

Gwynn & Hannon, of Spartanburg, for appellant.

Sanders & De Pass and Jesse W. Boyd, all of Spartanburg, and F. Barron Grier, of Greenwood, for respondents.

WATTS J.

This action for the recovery of damages both actual and punitive for alleged personal injuries sustained by the plaintiff was tried before Judge Sease and a jury at the Spring term of court, 1916, for Spartanburg county, and resulted in a verdict in favor of the defendants. After entry of judgment plaintiff appeals, and by six exceptions alleges error on the part of the circuit court. In a general way the exceptions present the following propositions:

1. Was it error for the court to tell the jury that the action of the court in overruling the motion for nonsuit was a matter of law, and not a matter from which the jury should draw inferences? This exception is overruled as being without merit. The judge did not in any manner invade the province of the jury, and did not in any manner infringe on their province, and in no manner used any language that made him a participant in the decision of the facts upon which the issue depended. He cautioned the jury as he had a right to do, but he left the whole matter to them to determine upon the issues in the case and find what the facts were and in no manner intimated his opinion on the facts to the jury whose exclusive province it was to decide them.

2. Was it error for the court to charge the jury the various conditions of their findings whereby the plaintiff would be precluded from recovery? We see no prejudicial error. The judge charged the legal propositions correctly in his own language and covered the law applicable to the case fully along this line in his own language, as he had the right to do, and the plaintiff could not have been prejudiced as complained of by this sound doctrine announced by the judge, and this exception is overruled.

3. Was it error for the court to refuse to charge that the jury should consider, in determining whether they would award punitive damages, the facts, if established as facts in the case, that the city speed ordinance was being violated and the statutory signals were not given? (Third and fourth exceptions.) The judge did charge that a violation of the city ordinance was negligence per se. He was in error in refusing the plaintiff's sixth request. He refused it...