Dantzler v. Southern Ry. Co

• Decision Date: 25 September 1929
• Docket Number: (No. 12738.)
• Citation: 149 S.E. 750
• Parties: DANTZLER. v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

149 S.E. 750

DANTZLER.

v.SOUTHERN RY. CO. et al.

(No. 12738.)

Supreme Court of South Carolina.

Sept. 25, 1929.

Cothran, J., dissenting in part.

Appeal from Common Pleas Circuit Court of Barnwell County; H. F. Rice, Judge.

Action by Mary Elizabeth Dantzler, as administratrix of the estate of Lawrence Keitt Dantzler, deceased, against the Southern Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The defendants assigned as ground for reversal the following exceptions:

"(1) Because his honor, the presiding judge, erred, it is respectfully submitted, in refusing defendants' motion for the direction of a verdict, upon the grounds:

" '(a) That the only reasonable inference to be drawn from the entire testimony is that the death of plaintiffs intestate was caused solely by his own negligence, recklessness and wilfulness.

" '(b) That the entire testimony is susceptible of but one reasonable inference, namely, that the danger of the situation resulting in the death of plaintiffs intestate was so obvious that an ordinarily careful person would have observed and appreciated the same, and hence plaintiff's intestate assumed the risks thereof.

" '(c) That the only reasonable inference to lie drawn from the entire testimony is that the proximate cause of the injuries resulting in the death of plaintiffs intestate was the intestate's own violation of a positive meet or der, which he had in his possession, not fulfilled, superseded, or annulled.'

"(2) Because his honor, the presiding judge, erred, it is respectfully submitted, in allowing the witness P. N. Rickenbaker to testify over objection of the defendants, as follows:

" 'Q. While Mr. Street and Mr. Hiott was there, did or not Mr. Dantzler say this in substance, or words to this effect: "I followed my orders, and the fellow up there dropped the clear board on me, and he has killed two of us, and the rest of us are going to die." * * * Did he make that statement? A. Yes, sir.'

"The error being that it was incompetent to introduce in evidence self-serving declarations made by the plaintiffs intestate in his own favor.

"(3) Because his honor, the presiding judge, erred, it is respectfully submitted, in his charge on the measure of damages, and in failing to charge that only the present cash value of the reasonably expected pecuniary benefits of which the beneficiaries were deprived by the death of plaintiff's intestate was recoverable in any event. In an action for death under the Federal Employers' Liability Act, the principle of limiting the recovery of damages for the deprivation of future payments or other pecuniary benefits to their present cash value only is an integral part of the statute, and it is respectfully submitted that the failure of the trial judge so to charge was erroneous and prejudicial to the defendants, in that the jury were thereby allowed to award as a present recovery the aggregate amount of such future benefits.

"(4) Because his honor, the presiding judge, erred, it is respectfully submitted, in charging the jury as follows:

" 'Now, it is the duty of the railroad company when they have an engineer in their engine, or when they employ anybody to work for them, to furnish a safe and suitable place for them to work. * * * It is undisputed that the control of the trains was under the officers of the railroad company other than Mr. Dantzler; so it was their duty to so direct those trains as to make it reasonably safe for him to operate his engine where he was ordered to go. There is not any question about that. * * * When he has been furnished a safe place in which to work he must use ordinary care in order to protect himself.' (Italics added,)

"This constituted error, in that it imposed upon the appellants herein a greater duty or responsibility than the law requires; it being respectfully submitted that, under the act in question, the law requires only that the employer use ordinary care or exercise reasonable diligence in furnishing the employee with a reasonably safe place in which to work.

"(5) Because his honor, the presiding judge, erred, it is respectfully submitted, in, charging the jury as follows:

" 'Now, under the Federal Employers' Liability Act, it is a matter of compensation pure and simple, pecuniary compensation, and whatever service, other than money, which Mrs. Dantzler and her child may have suffered in consequence of his death—you can take that into consideration.' (Italics added.)

'This constituted error, in that it authorized and allowed the jury to speculate and award damages for the loss of services other than financial support, when there was neither allegation nor proof of the loss of such services.

"(6) Because his honor, the presiding judge, erred, it is respectfully submitted, in charging the plaintiff's nineteenth request, as follows:

" 'And, on the other hand, you may consider whether or not, if the intestate had lived, his present wages would have increased by reason of experience and increased skill in his occupation.'

''The error being that there was no allegation or proof that plaintiff's intestate expected, or had any reason to expect, any increased earning capacity, or that it was probable, and hence, it is respectfully submitted, the presiding judge erred in allowing the jury to speculate upon this question and to take into consideration matters not raised either by the pleadings or by the proof. Under the Federal Employers' Liability Act, only such damages could be recovered as were proved to have been suffered, and there being neither allegation nor proof that plaintiff's intestate expected, or had any right to expect, any increase in his wages over and above what he was at that time receiving, the said charge of the presiding judge was harmful to the appellants herein and erroneous.

"(7) Because his honor, the presiding judge, erred, it is respectfully submitted, in refusing the defendant's motion for a new trial, upon the grounds:

" '(a) There is no evidence showing negligence of the defendants as alleged in the complaint.

" '(b) The evidence shows that the injuries resulting in the death of plaintiff's intestate were caused by the intestate's own negligence in violating a positive meet order which he had in his possession, which negligence of the plaintiff's intestate contributed to the accident and to his death as the proximate cause thereof, without which negligence on the part of plaintiff's intestate, the said accident resulting in his death would not have happened.

" '(c) The entire evidence shows that the injuries resulting in the death of plaintiff's intestate were caused by the intestate's own negligence in violating, among other rules of the defendants, rule No. 88, in that plaintiffs intestate failed to drive his engine in the siding at Orangeburg, the meeting point, and await the arrival of...