Bussey v. Charleston & W. C. Ry. Co

• Decision Date: 29 June 1898
• Citation: 30 S.E. 477,52 S.C. 438
• Court: South Carolina Supreme Court
• Parties: BUSSEY. v. CHARLESTON & W. C. RY. CO.

30 S.E. 477

52 S.C. 438

BUSSEY.

v.CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina.

June 29, 1898.

Trial —Instructions on Evidence —Duties op Master —Contributory Negligence — Dangerous Appliances—Damages.

1. An instruction, in an action to recover for personal injuries, that, if the jury find for plaintiff, they are to consider his suffering, loss of time and wages, impairment of his ability to earn a livelihood, and his permanent injury, if it be permanent, is not a charge upon questions of fact, where defendant does not deny the injury, but only its nature, extent, and consequences, and where the jury were further instructed that they were to determine from the evidence the extent of plaintiff's injuries, and remunerate him accordingly.

2. It is the duty of the master to provide suitable machinery and appliances, and keep them in proper repair, and the servant is not bound to ascertain whether the master has so acted.

3. Where an employe has knowledge, or is warned, that the machinery and appliances furnished him are dangerous, and continues to use the same, the question whether he was negligent in so doing is one of fact, unless but one inference can be drawn.

4. A party who desires to have an instruction made more specific must prepare a request to that effect.

5. A master who negligently furnishes a servant unsafe or unfit appliances is responsible for injuries resulting therefrom.

6. The court has a right to assume in its instructions that a fact pleaded by plaintiff, and not denied by defendant, is true.

7. A railroad company is responsible for injuries received by an employe, caused by the negligence of another employe who had the right to direct him.

8. An employe injured through the negligence of his employer is entitled to recover for all actual damages, present and prospective, —including loss of time, expense, bodily pain, and mental anguish, —which are the natural, proximate consequences of the injury.

Appeal from common pleas circuit court of Edgefield county; J. C. Klugh, Judge.

Action by Thomas T. Bussey against the Charleston & Western Carolina Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sheppard Bros, and S. J. Simpson, for appellant.

Croft & Tillman, for respondent.

GARY, A. J. This is an action for damages on account of injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant. The defendant denied all the allegations of negligence, and set up the defense of contributory negligence on the part of the plaintiff. The defendant also denied that the plaintiff's injuries were permanent, or that they were as serious as alleged. The jury rendered a verdict in favor of the plaintiff for $5,500, but this sum, on motion for a new trial, was reduced to $4,000. The defendant appealed, upon exceptions which we will proceed to consider:

The first and second exceptions complain of error on the part of the presiding judge as follows: "(1) In charging and instructing the jury upon the subject of the amount of damages the plaintiff would be entitled to recover, as follows: 'But you must determine, if you give the plaintiff any verdict at all, from the facts and circumstances attending the case, what amount you will give him. You are to consider the physical and mental suffering which he has endured. Ordinarily you would have to consider the expense which he was at for medical attendance, but it appears from the evidence, and the counsel admits, that the railroad company paid for his medical attendance, and therefore that is not an element of damage in this case; but his suffering, loss of time and wages, of course, which result, the Impairment of his ability to work and earn such wages as he otherwise would have continued to have earned, and the permanent injury, if it be permanent which he has received, —those are elements which you must take into consideration in determining the amount of damage;' thereby instructing the jury that they must take into consideration the several matters mentioned, and thereby stating to the jury, In effect that the plaintiff had lost time and wages, and that his ability to work and earn such wages as he had previously earned had been impaired. (2) In charging upon the facts, and stating to the jury, as one of the facts In the case, that the plaintiff had lost time and wages, and his ability to work had been Impaired; thus violating the provisions of section 26 of article 4 of the constitution of this state." Counsel for the appellant In their argument, say: "These exceptions raise but one question, —whether, in the portion of the charge complained of, the circuit judge violated the provision of section 26 of article 4 of the constitution, and charged upon the facts." The complaint, in setting forth the injuries sustained by the plaintiff, alleges-that "said scantling broke in two, and caused one of the guy ropes to suddenly jerk and catch the plaintiff behind the neck, and threw him with great violence from the top of said trestle, a distance of thirty-five feet, to the ground; thereby breaking his left thigh bone just below the hip joint, and also breaking four of his ribs on the left side, and also giving him a severe cut on the head, and also giving him severe inward bruises, which caused him hemorrhages from the lungs, and which said injuries caused the plaintiff great pain and suffering, and confined him to his bed for five weeks, and has permanently disabled him so that he never again can perform the work which he could do before receiving such injuries, to his damage In the sum of twenty thousand dollars." The defendant did not deny that the plaintiff was injured, but only denied the allegations of the complaint relating to the nature, extent and consequences of the injuries which the plaintiff is therein alleged to have sustained. The circuit judge, after using the language contained in the first exception, continued to charge the jury upon this subject as follows: "If a man is injured through the negligence of another, and his injury amounts to a total and permanent disability, as a matter of course he is entitled to a greater amount—greater measure—of damages than if the injury is not total and not permanent. So you must determine from the evidence in this case whether or not this plaintiff had been pei manently injured—totally incapacitated from ever earning a livelihood—or not; and, if you should conclude that that Is true, then the measure of damages would be greater But if you are satisfied from the evidence that his injury is not of so grave a character as that, but that it only affects for the time his ability to earn his wages, or that, even if it permanently affects his ability, it does not totally destroy his ability, but simply he cannot hereafter earn as much wages as he could have done but for this, but yet can earn some livelihood, then you must take that into consideration; and your verdict—the amount of damages you award him—could not be as great as in the case of total permanent disability." In his charge the circuit judge further said to the jury: "The facts of this case are exclusively for you to determine from the evidence, and you are to find from the evidence what are the facts, — what is the truth of the matter, —and apply to the facts as you find them the law as given by the court, and make up your verdict in the case." When the charge is considered in its entirety, and with reference to the pleadings, it shows (1) that the intention of the circuit judge was to state the issues made by the pleadings; and (2) that all questions of fact were left to the consideration of the jury, without any intimation as to the manner in which they should be decided. There was no error in these respects, and these exceptions are overruled.

The third exception imputes error as follows, to wit: "(3) In charging the jury, at one portion of his charge, in connection with the defendant...