Cole v. Blue Ridge Ry. Co

• Decision Date: 11 September 1906
• Citation: 55 S.E. 126,75 S.C. 156
• Parties: COLE . v. BLUE RIDGE RY. CO.
• Court: South Carolina Supreme Court

55 S.E. 126

75 S.C. 156

COLE .

v.BLUE RIDGE RY. CO.

Supreme Court of South Carolina.

Sept. 11, 1906.

1. Appeal — Reversal—Error in Instructions.

A judgment should be reversed for error in instructions, though there may be other grounds on which it may reasonably be based.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4219, 4221-4224.]

2. Railroads — Failure to Signal — Punitive Damages.

Under Code 1902, § 2139. punitive damages may be awarded for willful or reckless failure to give the signals required by section 2132, at a railroad crossing, where the complaint alleges that defendant recklessly failed to give such signal.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 1157.]

3. Negligence—Contributort Negligence.

An instruction that, if plaintiff contributed to the injury as the immediate cause of it, then he could not recover, though defendant company was negligent, was not an improper definition of contributory negligence.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 83, 85, 93-95, 382-399.]

Appeal from Common Pleas Circuit Court of Anderson County; Dantzler, Judge.

Action by George M. Cole against the Blue Ridge Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

T. P. Cothran, for appellant.

Martin & Earle, for respondent.

POPE, C. J. The plaintiff in his complaint seeks to recover the sum of $1,000,

together with costs, as damages for the killing of his horse by the defendant on the

crossing of the defendant's railway over a public highway, in the town of Pendleton, in this state, on the 20th of July, 1904. It is also alleged that the engine and tender of the defendant at the time of the killing of the horse was being run recklessly and at a high rate of speed, and that neither the bell nor the whistle of the engine was sounded, as required by law, at the time of such collision. The defendant in its answer admits its corporation under the laws of this state, and also the killing of plaintiff's horse by a collision at the crossing of a public road and defendant's line of railway, but it denies that such road is a public highway and is much used by the people. It also denies that the engine of the defendant struck the plaintiff's horse and buggy while the engine was being negligently and recklessly run by the defendant at a high rate of speed in the town and over said highway crossing; and also it denied the failure to ring the bell and sound the whistle on said engine for the distance of 500 yards from the said crossing and to keep the same ringing or sounding until the engine crossed said highway. It also alleges that the plaintiff's damage was caused by his own gross negligence contributing therewith as proximate cause of the action. The cause came on for trial before his honor Judge Dantzler, and a jury. Both sides offered testimony tending to prove the respective issues of the parties litigant After a charge by the judge, the verdict of the jury was for the plaintiff for $200. After entry of judgment thereon, the defendant appealed upon two grounds, and these we will now consider.

"(1) The presiding judge erred in charging the jury, In relation to the alleged statutory ground of liability, that the plaintiff would be entited to punitive damages if the jury found that the failure of the defendant to give the signals required by section 2132, Civ. Code 1902, was the result of willfulness, wantonness, or recklessness. Specifications: (1) The complaint does not allege either willfulness or wantonness. (2) The statute, section 2139, does not allow or warrant recovery under it of punitive damages for a neglect to comply with section 2132; under it there can be a recovery of actual damages only, and for neglect only to give the signals. It is a statute of exceptional liability, and contains no provision for punitive damagesfor a willful, wanton, or reckless failure to give the signals." We might remark just here that the plaintiff respondent Insists that It is unnecessary to consider this appeal because he alleges that It was harmless error, even if we admit that It was error, for the circuit judge to so charge, as herein complained of, because it is evident from the testimony introduced in the case that the jury only gave a verdict for the value of the horse killed, thus eliminating any question as to punitive damages. There is no question that the plaintiff alone introduced testimony as to the value of the horse killed. Several witnesses testified that the horse was worth $200. No one gave testimony as to a less or greater value of the horse killed than $200. The defendant offered no testimony on this issue. In disposing of this point raised by the plaintiff respondent, we must remark that the decision of this court in Bonham v. Bishop, 23 S. C. 96, 105, Is conclusive against the plaintiff's point. This court there declares: "The additional grounds upon which the respondent seeks to sustain the judgment, notwithstanding there may have been error in the charge, cannot be considered. While it is true that a judgment below in a case tried by the court may be affirmed upon other grounds than those upon which the circuit judge placed it, the same is not true of a case tried by a jury. If erroneous instructions have been given to the jury, we cannot know that the...