Bennett v. Southern Ry.-Carolina Division

• Decision Date: 15 September 1913
• Citation: Bennett v. Southern Ry.-Carolina Division, 79 S.E. 710, 98 S.C. 42 (S.C. 1913)
• Parties: BENNETT v. SOUTHERN RY.-CAROLINA DIVISION et al.
• Court: South Carolina Supreme Court

79 S.E. 710

98 S.C. 42

BENNETT v. SOUTHERN RY.-CAROLINA DIVISION et al.

Supreme Court of South Carolina

September 15, 1913

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

Action by Hattie E. Bennett, as administratrix of the estate of Luther W. Bennett, deceased, against the Southern Railway-Carolina Division and the Southern Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

The exceptions were as follows:

"(1) Except because the presiding judge erred in excluding and not allowing the question and answer of the witness W. H Green, on cross-examination, as to whether he considered McAlister, one of the defendants' engineers, and in charge of the train on which plaintiff's intestate was killed, one of the most careful engineers in the service this testimony being proper in reply to the charges and specifications of negligence made in the complaint as to the running of the train on which the deceased was at the time of his death, the error being in denying the right of the defendants to show the general reputation and character of its servant who had charge, and was alleged to have been reckless in the management and operation of its engine, which said reckless operation resulted in the death of the deceased, and, further, who was also charged with willful and wanton conduct in running and operating its train at a dangerous and reckless rate of speed, and in failing to keep and maintain any lookout, or give any signal or warning to plaintiff's intestate.

"(2) Except because the presiding judge erred in allowing and permitting the witness W. A. Summers, on his direct examination, over the objection of defendants, to testify that he saw a couple of places where fire had been dropped out at a point about a mile above Alston, and at least 2 1/2 miles from the trestle in question; the error being that such testimony was incompetent and irrelevant, such fires not being shown to have originated from coals escaping from defective, old, and burned-out ash pans and grates, as charged in the complaint, but originating from sparks from the smokestack and no negligence being alleged as to defects in the smokestack or as to fires connected therewith.

"(3) Except because the presiding judge erred in not granting a nonsuit in the cause upon motion of defendants; there being no testimony showing or tending to show any negligence upon the part of the defendants or breach of duty owing to plaintiff's intestate in the particulars alleged in paragraph 7 of the complaint: (a) It appearing that there was no evidence showing or tending to show negligence, as specified, in subdivision (a) of paragraph 7 of the complaint; that the defendant company carelessly, recklessly, wantonly, and willfully operated locomotive engines on its line of railroad over the trestle bridge therein mentioned, which said engines contained defective, old, and burned-out ash pans and grates which permitted sparks and live coals to drop on said trestle bridge. (b) It appearing that there was no evidence tending to prove the allegations of negligence contained in specification (b) of the seventh paragraph of the complaint; that there was a failure to inspect the trestle bridge on which plaintiff's intestate was killed; or that said trestle bridge was composed of old, worn-out, and defective timber and materials which caused the same to become easily ignited by fire. (c) It appearing that there was no testimony to prove or tending to prove negligence, as specified in subdivision (c) of the seventh paragraph of the complaint; that the defendant company furnished and maintained an unsafe and dangerous place, to wit, the trestle bridge, upon which plaintiff's intestate was required to perform the duties required of him as locomotive fireman. (d) It appearing that there was no testimony to prove or tending to prove that the defendant company failed to properly inspect and repair the engines and parts of engines through which fire, coal, and cinders might fall, and escape, and ignite the trestle bridge, as set forth in subdivision (d) of the seventh paragraph of the complaint. (e) It appearing that there was no testimony to prove or tending to prove that the defendants failed to properly inspect and repair, or failed to maintain in a safe, suitable, and proper condition the said trestle and trestle bridge upon which plaintiff's intestate lost his life, or that there was any failure upon the part of the defendant company, its agents, and servants to inspect such trestle and trestle bridge, as set forth in subdivision (e) of the seventh paragraph of said complaint. (f) It appearing that there was no testimony to prove or tending to prove that the defendants negligently, wantonly, or willfully ran and operated the first locomotive engine, to which the engine on which the plaintiff's intestate lost his life was attached, at a dangerous and reckless rate of speed, and without keeping and maintaining a proper lookout, or giving any signal or warning by bell, whistle, or otherwise to plaintiff's intestate, or that such alleged negligence caused the engine, on which plaintiff's intestate was discharging his duty, to run into said burning trestle.

"(4) Except because the presiding judge charged the jury, after stating to them that the relation which existed between the plaintiff's intestate and the defendant company was that of master and servant, and that the master must furnish a reasonably safe place, instrumentalities, tools, and the like to the servant in the discharge of his duties as such servant, that, 'where it appears that the servant is injured by defective instrumentalities, machinery, places or things of that kind, it is prima facie evidence of negligence on the part of the master, and the master assumes the burden of showing that he exercised due care in furnishing means, places, and instrumentalities in matters of that kind,' the error being, it is submitted that the master is not the absolute insurer of the safety of the servant, nor does any presumption as to the master's negligence arise from the fact of injury to the servant, nor does the burden of proof in an action by the servant against the master for an injury from instrumentalities or machinery shift from the servant to the master, but the servant must prove the negligence of the master, as alleged in his complaint; that this is true both as to law prevailing in this state, and especially under the Employers' Liability Act of Congress, under which this action was brought and tried, and that said charge is an improper and erroneous construction of said act and deprives the defendants of their full right of defense under said act.

"(5) Except because the presiding judge erred in charging the jury with reference to the duties and liabilities existing between a master and servant as follows: "The master must use due care, the care that is due, to see that the place in which, the instrumentalities with which, the servant is to perform his duties as a servant are safe and suitable. Where it appears that the servant is injured by and through defective instrumentalities, machinery, or places and things of that kind, it is prima facie evidence of negligence on the part of the master, and the master assumes the burden of showing that he exercised due care in furnishing places, means, instrumentalities, and matters of that kind;' the error being: (a) That no presumption of negligence on the part of the master arises from mere proof of injury to a servant through defective instrumentalities, machinery, or places, nor is it prima facie evidence of negligence on the part of the master, nor does the burden of proof shift from the servant to the master to show that the master exercised due care in furnishing places, means, instrumentalities, and matters of that kind. (b) That such charge entirely excludes the element of knowledge upon the part of the master, and would make the master liable upon mere proof of defective instrumentalities, machinery, or places, without proof that the master knew of such defects, or ought to have known of such defects in the exercise of reasonable care. (c) That said charge was erroneous, because it deprived the defendants of a substantial right of defense, arising under a proper construction of the act of Congress known as the federal Employers' Liability Act, under which this case was brought and tried, and which was the sole and exclusive law upon the subject. (d) That, as applied to the case before the jury, the above charge was a charge upon the facts, and was tantamount to telling the jury that, in the event they found that there were defects in the trestle or in the instrumentalities of the defendant company's engines, and that by reason thereof Bennett lost his life, that they should find, and that the law was that this made out a case of negligence against the defendants, and that their verdict should be for the plaintiff, unless the defendants showed by the preponderance of the testimony that they had exercised due care in furnishing places, means, instrumentalities, and matters of that kind, and that such charge was in violation of the Constitution of this state.

"(6) Except because the presiding judge erred in refusing the motion of defendants for a new trial, which was made upon the ground that the verdict in the case was so excessive that it cannot be sustained under the facts or charge in the case as a verdict for compensatory damages under a proper construction of the federal Employers' Liability Act, which limits the measure of damages to the actual pecuniary loss sustained by the beneficiaries under that act; the error being as it is respectfully submitted: (a) That there is no testimony tending to sustain

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