Barksdale v. Seaboard Air Line Ry.

• Decision Date: 27 February 1907
• Citation: 56 S.E. 906,76 S.C. 183
• Parties: BARKSDALE v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

56 S.E. 906

76 S.C. 183

BARKSDALE v. SEABOARD AIR LINE RY.

Supreme Court of South Carolina

February 27, 1907

Appeal from Common Pleas Circuit Court of Abbeville County Memminger, Judge.

Action by W. D. Barksdale, administrator of Edward Y. Barksdale against the Seaboard Air Line Railway. From a judgment for plaintiff for less than the amount claimed, he appeals. Affirmed.

Ellis G. Graydon, Wm. N. Graydon, and F. B. Gary, for appellant. J L. Glenn and Wm. P. Greene, for respondent.

GARY A. J.

The complaint alleges that on the 9th of September, 1904, Edward Y. Barksdale was in the employment of the defendant as an engineer, and, while running his engine, was killed through the negligence of the defendant, in failing to construct a suitable and safe trestle, and in failing to give him timely warning that it had fallen while another train was passing over it. The answer denied the allegations of negligence, and set up as a defense that the plaintiff's intestate was guilty of contributory negligence. The jury rendered a verdict in favor of the plaintiff for $1,000. The plaintiff appealed upon a single exception, which, sets out the following assignments of error: "(1) In charging the jury, at the request of the defendant, as follows: '(1) That there is no evidence in this case of any pecuniary loss to the parties in interest, in whose behalf the plaintiff is suing, and therefore the jury can only consider such damage as they have suffered, otherwise than from pecuniary loss in making up a verdict, if they should find for the plaintiff.' The errors in said charge are as follows: (a) The statute does not put the loss on a money basis at all, and the effect of the said charge was to impress on the jury that they ought to reduce the verdict, on account of the failure to prove that the deceased contributed to the support of his father and mother. (b) The plaintiff was put in the position of failing to prove something material to his case, when the statute does not require, or even allow, him to prove anything as to pecuniary loss. (c) In reading the act as it stood before the late amendment, which dispenses with proof of pecuniary loss in any case, thus impressing on the jury that in some cases money loss must be proved. (d) The said charge was misleading and prejudicial to the plaintiff, in that it produced the impression on their minds that it was incumbent on the plaintiff to prove actual pecuniary loss, when the statute does not require it. (e) In that under the statute pecuniary loss is not an element of damages, and it is not necessary either to allege or to prove such pecuniary loss, to entitle a party to recover full damages for death caused by wrongful act, negligence, or default of another. (f) In impressing on the jury that it was incumbent on the plaintiff to prove something that the statute does not require him either to allege or prove, thus producing in the minds of the jury the impression that the plaintiff had failed to prove some fact, made material by the statute, when, it is respectfully submitted that it is not necessary, or perhaps proper, to allege or prove any pecuniary loss whatever, but the statute leaves the question of loss entirely to the jury after making proof that the killing occurred by the wrongful act, negligence, or default of the defendant."

His honor, the presiding judge, read to the jury section 2852 of the Code of Laws (Code Civ. Proc. 1902), which is as follows "Every such action shall be for the benefit of the wife or husband, and child or children of the person, whose death shall have been so caused; and if there be no such wife, or husband, or child, or children, then for the benefit of the parent or parents; and if there be none such, then for the benefit of the heirs at law or distributees of the person, whose death shall have been caused, as may be dependent on him for support, and shall be brought by or in the name of the executor or administrator of such person; 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, willfulness, or malice, as t...