Nelson v. Charleston & W. C. Ry. Co., No. 17306

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtOXNER; LEGGE and MOSS, JJ., and G. DUNCAN BELLINGER; TAYLOR
Citation98 S.E.2d 798,231 S.C. 351
PartiesW. E. NELSON, as Administrator of the Estate of Billie Baker Turner, Respondent, v. CHARLESTON AND WESTERN CAROLINA RAILWAY COMPANY, Appellant.
Decision Date10 June 1957
Docket NumberNo. 17306

Page 798

98 S.E.2d 798
231 S.C. 351
W. E. NELSON, as Administrator of the Estate of Billie Baker
Turner, Respondent,
v.
CHARLESTON AND WESTERN CAROLINA RAILWAY COMPANY, Appellant.
No. 17306.
Supreme Court of South Carolina.
June 10, 1957.

Page 799

[231 S.C. 352] A. C. Todd, Greenwood, Warren & Warren, Hampton, for appellant.

[231 S.C. 353] Randolph Murdaugh, Hampton, W. Brantley Harvey, Beaufort, for respondent.

[231 S.C. 354] OXNER, Justice

This is an action to recover damages for the alleged wrongful death of Mrs. Billie Baker Turner. About 12:10 A.M. on August 23, 1950, an automobile driven by her [231 S.C. 355] collided with a freight train of the Charleston & Western Carolina Railway Company at a spur track crossing on U. S. Highway No. 21, approximately four miles north of the town of Beaufort. Her husband, who was riding with her, was killed instantly. She died the following day as a result of injuries sustained in the collision. The action was originally brought for the benefit of her two brothers, James Monroe Baker and William Eugene Baker, and her sister, Mrs. Gertrude B. Dressing. The case was tried at the February, 1953 term of the Court of Common Pleas of Hampton County and resulted in a verdict for plaintiff for $30,000 actual damages and $12,500 punitive damages. From the judgment entered thereon, the Railway Company appealed. In an opinion filed on February 15, 1955, the judgment was reversed and a new trial granted on account of certain erroneous instructions relating to damages. Nelson v. Charleston & W. C. R. Co., 226 S.C. 516, 86 S.E.2d 56.

Subsequent to the first trial of the case, the sister, Mrs. Gertrude B. Dressing, died and the complaint was amended by eliminating her as a beneficiary, leaving an action solely for the benefit of the two brothers. The case was tried a second time in March, 1956, and resulted in a verdict for the plaintiff in the sum of $35,000 actual damages and $17,500 punitive damages. A new trial was ordered unless the plaintiff remitted $6,000 of the verdict for actual damages. In due time the remission was made and judgment entered for $29,000 actual damages and $17,500 punitive damages. From this judgment, the Railway Company has appealed.

The first question presented is whether the trial Judge erred in overruling appellant's motions, timely made, for a nonsuit and a directed verdict upon the grounds that there was no proof of actionable negligence or wilfulness on the part of appellant and that the death of respondent's intestate resulted solely from her own gross negligence and wilfulness but if not, she was, as a matter of law, at least guilty of [231 S.C. 356] contributory negligence, gross negligence and wilfulness. The same contention was raised on the first appeal. In overruling same, we said: '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.' There was no petition for a rehearing by appellant.

We think our conclusion on the first appeal that the evidence was sufficient to warrant submission of the case to the jury as to both actual and punitive damages is the 'law of the case.' Steele v. Atlantic Coast Line R. Co., 109 S.C. 104, 95 S.E. 180; Brown v. Piedmont Mfg. Co., 109 S.C. 343, 96 S.E. 138; Johnson v. Atlantic Coast Line R. Co., 116 S.C. 135, 107 S.E. 31; Jenkins v. Southern R. Co., 145 S.C. 161, 143 S.E. 13; Cato v. Atlanta & C. A. L. Ry. Co., 164 S.C. 123, 162 S.E. 239; Cohen v. Standard Accident Insurance Co., 203 S.C. 263, 17 S.E.2d 230; Holly Hill Lumber Co., Inc., v. McCoy, 210 S.C. 440, 43 S.E.2d 143; Royal Crown Bottling Co. v. Chandler, 228 S.C. 412, 90 S.E.2d 489.

Although we granted appellant's counsel permission to argue against that portion of our previous opinion in which we held that the motions for nonsuit and directed verdict were properly overruled, we are now convinced that appellant should not be permitted to relitigate the question. On the first appeal it was fully argued and carefully considered by this Court. After the decision was rendered, appellant again had

Page 800

the opportunity of raising the question by petition for a rehearing but failed to do so.

We find no merit in appellant's argument that since we concluded on the first appeal that there must be a new trial for errors in the charge, the question of whether the Court below committed error in refusing to direct a verdict for the defendant 'was not necessarily involved, that is to say, was not the essential ground of the decision.' We think it was necessary on the previous appeal that we decide whether or [231 S.C. 357] not the trial Judge erred in refusing the motions for nonsuit and directed verdict. Logically this was the first question to determine, for if there had been error in this respect it would have been unnecessary to consider any other questions.

Of course, the doctrine of 'the law of the case' has no application where the facts relating to the question decided are substantially different on a second appeal. In order to escape the application of the doctrine, however, there must be a material change in the evidence. Additional evidence cumulative in nature will not take the case out of the rule and constitute a material change where evidence of the same class and character was considered on the former appeal. 3 Am.Jur., Appeal and Error, Section 1000.

After a painstaking examination of the transcript of record on the former appeal, we find that the testimony with respect to the issues of negligence and wilfulness and contributory negligence, gross negligence and wilfulness was substantially the same on both trials. Respondent's proof as to liability was certainly no weaker on the second trial. Counsel for appellant have set out in their brief numerous alleged variances but none has any material bearing on the question of a directed verdict. Some of the differences mentioned relate solely to the issue of damages; some to the order in which the witnesses testified. Attention is also called to certain additional testimony offered at the second trial but it was of a cumulative nature. Testimony of the same character was considered by us on the former appeal.

It is next contended that the Court erred in permitting respondent 'to prove abandonment of the spur track involved.' We think appellant's counsel have misapprehended the position taken by respondent. He neither alleged nor sought to prove that the track had been abandoned. His allegation was that 'the defendant ran an extra, or special, train on and over the said practically abandoned and seldom used spur track * * *.' The Court admitted [231 S.C. 358] in evidence a...

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18 practice notes
  • St. Louis Southwestern Ry. Co. v. Pennington, No. 76-155
    • United States
    • Supreme Court of Arkansas
    • May 23, 1977
    ...However, there must be some limitation on the amount to be awarded in such cases. As stated in Nelson v. Charleston & W.C. Ry. Co., 231 S.C. 351, 98 S.E.2d 798, quoting in part from the Mock case, "the propriety of the exercise by this Court of its power to set aside a verdict on the ground......
  • Brooks v. United States, Civ. A. No. 66-514.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 15, 1967
    ...L.Ed. 590; Gomillion v. Forsythe (1950), 218 S.C. 211, 225, 62 S.E.2d 297, 53 A.L.R.2d 169; Nelson v. Charleston & W. C. Ry. Co. (1957), 231 S.C. 351, 359, 98 S.E.2d 798; Elliott v. Black River Elec. Co-Op. (1958), 233 S.C. 233, 265, 104 S.E.2d 357, 74 A.L.R.2d 907; Greene v. Miller (D.C.S.......
  • Peagler v. Atlantic Coast Line R. Co., No. 17503
    • United States
    • United States State Supreme Court of South Carolina
    • February 12, 1959
    ...crossing accident showing grass and weeds in the roadbed on each side of the crossing. Nelson v. Charleston & Western Carolina Ry. Co., 231 S.C. 351, 98 S.E.2d [234 S.C. 163] 798. Where a photograph reasonably reproduces a locus it is proper to admit such in evidence, provided it is necessa......
  • Ross v. Medical University of South Carolina, No. 24694
    • United States
    • United States State Supreme Court of South Carolina
    • May 7, 1997
    ...decided and to those issues which were necessarily decided in the former case. Nelson v. Charleston & Western Carolina Railway Co., 231 S.C. 351, 357, 98 S.E.2d 798, 800 (1957) (where Court granted a new trial in first appeal for errors in the charge, it logically determined trial court had......
  • Request a trial to view additional results
18 cases
  • St. Louis Southwestern Ry. Co. v. Pennington, No. 76-155
    • United States
    • Supreme Court of Arkansas
    • May 23, 1977
    ...However, there must be some limitation on the amount to be awarded in such cases. As stated in Nelson v. Charleston & W.C. Ry. Co., 231 S.C. 351, 98 S.E.2d 798, quoting in part from the Mock case, "the propriety of the exercise by this Court of its power to set aside a verdict on the ground......
  • Brooks v. United States, Civ. A. No. 66-514.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 15, 1967
    ...L.Ed. 590; Gomillion v. Forsythe (1950), 218 S.C. 211, 225, 62 S.E.2d 297, 53 A.L.R.2d 169; Nelson v. Charleston & W. C. Ry. Co. (1957), 231 S.C. 351, 359, 98 S.E.2d 798; Elliott v. Black River Elec. Co-Op. (1958), 233 S.C. 233, 265, 104 S.E.2d 357, 74 A.L.R.2d 907; Greene v. Miller (D.C.S.......
  • Peagler v. Atlantic Coast Line R. Co., No. 17503
    • United States
    • United States State Supreme Court of South Carolina
    • February 12, 1959
    ...crossing accident showing grass and weeds in the roadbed on each side of the crossing. Nelson v. Charleston & Western Carolina Ry. Co., 231 S.C. 351, 98 S.E.2d [234 S.C. 163] 798. Where a photograph reasonably reproduces a locus it is proper to admit such in evidence, provided it is necessa......
  • Ross v. Medical University of South Carolina, No. 24694
    • United States
    • United States State Supreme Court of South Carolina
    • May 7, 1997
    ...decided and to those issues which were necessarily decided in the former case. Nelson v. Charleston & Western Carolina Railway Co., 231 S.C. 351, 357, 98 S.E.2d 798, 800 (1957) (where Court granted a new trial in first appeal for errors in the charge, it logically determined trial court had......
  • Request a trial to view additional results

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