Nelson v. Charleston & W. C. Ry. Co., 16966

• Decision Date: 15 February 1955
• Docket Number: No. 16966,16966
• Citation: 86 S.E.2d 56,226 S.C. 516
• Court: South Carolina Supreme Court
• Parties: W. E. NELSON, Adm'r, Respondent, v. CHARLESTON & WESTERN CAROLINA RAILWAY COMPANY, Appellant.

Page 56

86 S.E.2d 56

226 S.C. 516

W. E. NELSON, Adm'r, Respondent, v. CHARLESTON & WESTERN CAROLINA RAILWAY COMPANY, Appellant.

No. 16966.

Supreme Court of South Carolina.

Feb. 15, 1955.

A. C. Todd, Greenwood, Warren & Warren, Hampton, for appellant.

Randolph Murdaugh, Hampton, W. Brantley Harvey, Beaufort, for respondent.

LEGGE, Justice.

This is an action for damages for the alleged wrongful death of respondent's intestate, Mrs. Billie Baker Turner, resulting from injuries sustained by her in a collision between an automobile, which she was driving, and a freight train of the appellant, about 12:00 a. m. on August 23, 1950, at a spur track crossing on U. S. Highway No. 21 a few miles north of the city of Beaufort. The spur track, which crosses the highway at right angles, serves certain industries located in the area formerly occupied by the Beaufort Naval Air Base, lying east of the highway at this point. It appears without dispute that at the time of the collision Mrs. Turner was driving southward on Highway No. 21, towards Beaufort, and defendant's engine, pulling one box car, was proceeding in an easterly direction across the highway, and that the automobile struck about the middle of the box car. The automobile was demolished and decedent's husband, Commander Turner, who was with her in the automobile, appears to have been instantly killed. Mrs. Turner died the following day.

The complaint charged the defendant with negligence and wilfulness in numerous particulars, and the answer, in addition to a general denial, alleged contributory negligence, gross negligence and wilfulness on the part of the plaintiff's intestate. Timely motions for non-suit and for direction of a verdict for the defendant were made and overruled, and the case was submitted to the jury, which rendered a verdict in favor of the plaintiff for $30,000 actual, and $12,500 punitive, damages. Defendant thereafter moved for judgment non obstante veredicto as to both punitive and actual damages and, in the alternative, for a new trial; and this motion was refused. Appellant seeks reversal on twelve exceptions, which impute error or the part of the trial judge:

1. In refusing to grant appellant's motions before mentioned, for the reason that there was no proof of actionable negligence or wilfulness, and that, on the contrary, the evidence was susceptible of no reasonable inference other than that the death of plaintiff's intestate either resulted from her sole negligence and wilfulness or was proximately caused by contributory negligence and contributory wilfulness on her part (Exceptions 1, 2, 3, 6, 7, and 8);

2. In his charge on the measure of damages (Exception 4);

3. In refusing to charge appellant's request relating to contributory negligence (Exception 5);

4. In refusing to grant appellant's motion for a new trial because of improper and prejudicial argument of respondent's counsel (Exceptions 9, 10 and 12); and

5. In refusing to grant appellant's motion for a new trial because of the excessiveness of the verdict (Exception 11).

As the case must be remanded for a new trial, we shall not discuss in detail the evidence, which was conflicting. In our opinion, it was sufficient to carry to the jury the issues of both actual and punitive damages.

Exception 5 charges error in the refusal of the trial judge to charge the jury, at appellant's request:

'Even though you should find that the railway company was negligent, but also find that plaintiff's intestate contributed to her death or injury in some degree by her own negligence, your verdict should be for the defendant company. The law does not recognize degrees of negligence, but says that if the person killed or injured contributed in the slightest degree to her death or injury, she cannot recovery even though the defendant was more negligent than she was.'

As thus presented, the language of this request was too broad, for it failed to take into consideration the issue or proximate cause or the issue of gross negligence or wilfulness on the part of the defendant. The trial judge committed no error in refusing it.

Appellant contends (Exception 4) that the trial judge was in error in charging the jury as follows:

'If you find the plaintiff is entitled to recover damages in this case for the wrongful death for the parties for whose benefit this action was brought, you should try to find the reasonable value of the life of plaintiff's interstate, the probable expectancy of life, the earning capacity, if there be such, and give such sum as would be a reasonable measure of the actual value of her life to those for whose benefit the suit was brought, the value of her society, the loss of companionship to her family, including her brothers and sister and others, if there be any evidence of loss'.

The complaint alleged that the action was brought for the benefit of James Monroe Baker and William Eugene Baker, the brothers, and Gertrude B. Dressing, the sister of the decedent; and Mrs. Dressing testified that she and her two said brothers survived her sister as her heirs. W...