Brown v. Southern Ry.

• Decision Date: 25 February 1903
• Citation: 43 S.E. 794,65 S.C. 260
• Parties: BROWN v. SOUTHERN RY.
• Court: South Carolina Supreme Court

43 S.E. 794

65 S.C. 260

BROWN v. SOUTHERN RY.

Supreme Court of South Carolina

February 25, 1903

Appeal from Common Pleas Circuit Court of Union County; R. C. Watts Judge.

Action by Joyce Brown, administrator, against the Southern Railway. Judgment for plaintiff. Defendant appeals. Affirmed.

The following are defendant's exceptions:

"His honor erred:

(1) In not permitting the witness S. T. Clowney to testify to the statements of Martin Brown as to the efforts Brown's children had been making in trying to get his property from him. The error being that, this being a statement of one through whom the children were claiming as beneficiaries, it was competent and relevant to prove this statement on the question of the amount of damages, and in mitigation thereof.

(2) In charging the jury that they could 'award damages to the family of the deceased for any wounded feelings or mental suffering, or any shock to their affections, and anything of that sort, in addition to such pecuniary loss that the party has sustained.' The error being that while, under the statute, the jury are allowed to give such damages 'as they may think proportioned to the injuries resulting from such death,' it is respectfully submitted (a) That neither wounded feelings nor mental suffering nor shock to affections are the subject of damages, unless they cause some physical injury or sickness of some kind. (b) That mere wounded feelings or mental suffering or shock to affections, unaccompanied by any physical injury or sickness of some kind, are not the subject of damages, especially for injuries done to some one else besides the person who undergoes mental suffering or wounded feelings or shock to affections. (c) That his honor, by his charge left it to the jury to give damages for the death of the deceased, for mental suffering, wounded feelings, and shock to affections, even though they may not have produced physical injuries or sickness of some kind. (d) Then by his charge his honor allowed the jury to award damages to the family of the deceased for wounded feelings or mental sufferings or shock to their affections, without proof or evidence of any kind that a large number of the members of this family had undergone any wounded feelings or mental suffering or shock to their affection. (e) That by his charge his honor failed to comply with section 26, art. 4, of the Constitution, in that he failed to declare the law applicable to the case at bar, in connection with this portion of his charge, in not instructing the jury that mental suffering wounded feelings, or shock to the affections must cause or produce injury, before damages could be allowed.

(3) Because, after reading the statute in reference to the ringing of the bell or sounding of the whistle, his honor charged as follows: 'Now, I charge you, as a matter of law, that, if the engine or cars were at a standstill within the distance of a hundred rods of such crossing before they started that car, it was their duty to ring the bell or blow the whistle for at least thirty seconds before they moved the engine, and it was their duty to keep ringing or sounding it until the engine could have crossed such public highway or street or traveled place; and, if they failed to do that then that was negligence on their part, per se, if it was within a hundred rods of the public crossing; and if they moved that engine or that train of cars without sounding that bell or blowing that whistle for at least thirty seconds before they moved it, and failed to keep ringing the bell or sounding the whistle until the engine crossed the public highway, street, or traveled place, then they were guilty of negligence per se. If you think they were guilty of negligence, and their negligence was the direct and proximate cause of

plaintiff's intestate's death, then you can award plaintiff in this case, administratrix of his estate, such damages as you think she has sustained, proportionate to the injury sustained.' The error being, as it is respectfully submitted: (a) That inasmuch as the engine was already across the alleged highway for the purpose of going on further, and not recrossing or again crossing such alleged highway, his honor left it in the power of the jury to give damages against the defendant for failure to continue to ring the bell until it could have again crossed such highway, although it was not the purpose or intention of those in charge of the engine and train to again cross said highway, and although the bell may have been ringing for more than thirty seconds before the engine moved from where it then was. (b) Because, under his honor's charge, the jury were empowered to give damages against the defendant company, even though the bell may have been ringing for thirty seconds before the engine moved from where it then was. (c) Because, under his honor's charge, he not only required the bell to be ringing or the whistle to be sounded for at least thirty seconds before the engine moved, and continue to ring until it crossed such highway, but he also required that the whistle should be kept sounding or the bell ringing until the engine could have crossed the alleged highway, although it was going away from said highway, and it was not the intention of those in charge of the engine and train to cross or recross such alleged highway. (d) Because by his honor's charge he instructed the jury that where an engine has already crossed a street or highway, and is at a standstill, that it must not only sound its whistle or ring its bell for thirty seconds before moving, but that it must continue to ring said bell or sound such whistle until such engine should have crossed such street or highway, but also that it must continue to ring the bell until it crossed such street or highway, even though it appear that it was going away from such street or highway, whereas, it is respectfully submitted that under such circumstances it is only required that the bell should be rung or whistle sounded for thirty seconds before moving the engine or train of cars. (e) Because it is respectfully submitted that where an engine attached to a train of cars is at a standstill, with part of the train on one side and part on the other side of any street or highway, the statute does not apply, nor was it the intention of the Legislature to require the engine to sound its whistle or ring its bell for thirty seconds before moving such engine, and to keep the same ringing until the engine could or should cross such street or highway, especially if, as under the facts in this case, it appears that it was not the purpose of those in charge of such engine and train to recross said street with such engine. (f) Because, in so charging, his honor charged upon the facts, and stated facts to the jury, contrary to the provisions of section 26, art. 4, of the Constitution of this state, which provides that judges shall not charge juries in respect to matters of fact. (g) Because, in so charging, his honor assumed, as matter of fact, that there was a public highway at the place where the injury occurred. (h) Because, in so charging, his honor assumed, as matter of fact, that there was an engine and cars of the defendant company at or near a public highway where the alleged injury occurred.

(4) Because his honor, in his charge, failed to instruct the jury in reference to the defense of contributory negligence, except in so far as the same applied to injuries received at a highway crossing by collision with an engine or train of cars. The error being, it is respectfully submitted, that by this failure he confined the jury to the consideration of the defense of contributory

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