Osteen v. Southern Ry., Carolina Division

• Decision Date: 25 March 1907
• Citation: 57 S.E. 196,76 S.C. 368
• Parties: OSTEEN v. SOUTHERN RY., CAROLINA DIVISION.
• Court: South Carolina Supreme Court

57 S.E. 196

76 S.C. 368

OSTEEN v. SOUTHERN RY., CAROLINA DIVISION.

Supreme Court of South Carolina

March 25, 1907

Appeal from Common Pleas Circuit Court of Kershaw County; Hydrick Judge.

Action by Henrietta Osteen against the Southern Railway, Carolina Division. Judgment for plaintiff. Defendant appeals. Affirmed.

The following are defendant's exceptions:

"(1) Excepts because his honor erred in refusing defendant's first request to charge, which was as follows: 'The evidence in this case shows beyond controversy that the deceased drove upon the railroad track without looking, and that he was hard of hearing. Such being the undisputed evidence, I charge you that the deceased failed to exercise the care required of him by law, and your verdict must be for defendant.' Said request, it is submitted, was correct as to the law and the evidence, and his honor should have charged the jury as therein requested.

(2) Excepts because his honor erred in refusing defendant's second request to charge, which was as follows: 'The law requires a traveler who knows that he is about to cross the track of a railroad to look and listen for approaching trains before attempting to cross, and that he must do this at such a distance as will enable him to stop, in case he hears or sees an approaching train. Sou Ry. v. Carroll, 138 F. 641, 71 C. C. A. 88; S. & R. on Negligence, 746. The evidence in this case being undisputed that the deceased failed to do this, I charge you, as a matter of law, that your verdict must be for the defendant.' Said request, it is submitted, was correct as to the law and the evidence, and his honor should have charged the jury as therein requested.

(3) Excepts because his honor erred in refusing defendant's third request to charge, which was as follows: 'The undisputed evidence in this case shows that the deceased, after reaching a point 12 to 20 feet from the railroad track, had an unobstructed view of the approaching train for a distance of at least 120 feet, and, it being a physical impossibility for the deceased to have looked and not seen the approaching train, and from the undisputed evidence it appearing that, if he had looked, he could have kept off the track and prevented the accident, I charge you as a matter of law that the deceased failed to exercise the care required by law, and plaintiff cannot recover in this action.' Said request, it is submitted was correct as to the law and the evidence, and his honor should have charged the jury as therein requested.

(4) Excepts because his honor erred in refusing defendant's fourth request to charge, which was as follows: 'If you should find from the evidence, if there be such evidence, that the deceased was hard of hearing, or deaf, and could not hear the approach of the train, then it matters not whether the railroad company gave the signals required by the statute, because the object of giving signals is to give notice to persons wishing to cross, who can hear them.' Whereas, the request contained a correct proposition of law applicable to the case, and should have been charged; and its refusal was to defendant's prejudice.

(5) Excepts because his honor erred in refusing to charge defendant's ninth request, which was as follows: 'If you should find that the crossing in question is more hazardous than an ordinary crossing, on account of the trees and shrubbery referred to, then I charge you that this fact required the deceased to use more care than he would have used at an ordinary crossing. The greater the danger at a public crossing, the greater the degree of care to be used by the person attempting to cross the railroad track.' It is respectfully submitted that this request contained a correct proposition of law applicable to the facts of this particular case, and its refusal was to defendant's prejudice.

(6) Excepts because his honor erred in refusing to charge defendant's tenth request, which was as follows: 'If one sees or hears an approaching train in time for him to keep from getting on the railway track in front of such train, it is his duty to stop before entering upon such track; and if he fails to do this and undertakes to go upon or across such track in front of the engine, and by reason of this is struck, he (or in case of his death his administrator) cannot recover damages on account of such injury for failure to ring the bell or sound the whistle, even though the statute required such a signal at such place, and even though the bell was not rung or the whistle blown, as the statute requires.' And in modifying the same by charging: 'The requirement of the statute that the bell shall be rung or the whistle blown is intended to give warning of the approach of a train, and unless the failure to ring the bell or blow the whistle contributes to the injury as the proximate cause of it (in the words of the statute, which I will read to you directly), of course, the failure to ring the bell or blow the whistle cannot be said to have made any difference; but, if it did, no matter for what cause, then the party would have the right to take advantage of the signals--I mean, of whatever advantage the giving of those signals would amount to, in whatever way it might arise.' The modification deprived the defendant of the specific charge desired--that, if plaintiff's intestate saw or heard the train in time to keep off the track, the failure to give the statutory signal would not allow a recovery on the statutory cause of action. The purpose of such signal being to give notice of the approach of the train, if plaintiff's intestate saw or heard it in time to prevent the accident, there could be no recovery under the statute. The benefit of this proposition was denied.

(7) Excepts because his honor erred in refusing to charge defendant's twelfth request, which it is submitted contained a correct proposition of law, applicable to this case. Said request being as follows: 'The traveler is required to give way to any train which is in sight or hearing, and moving so rapidly as to make it doubtful whether he can cross in perfect safety."'

(8) Excepts because his honor erred in refusing to charge defendant's fourteenth request, which is as follows: 'If you find from the evidence that the deceased was hard of hearing, or deaf, then I charge you that he was required, under the law, to be more vigilant in the use of his eyes.' And in modifying the same by charging: 'If due care required him to be so. That is all he is required to exercise--due care, and whatever that required him to do he is bound to do.' Said request as submitted contained a correct proposition of law applicable to the case, and should, therefore, have been charged. The modificaton destroyed the entire effect of the request, and was calculated to mislead the jury as to the proposition therein requested.

(9) Excepts because his honor erred in refusing defendant's seventeenth request to charge, which contained a correct proposition of law, applicable to the case. Said request was as follows: 'The fact that a person injured at a railroad crossing relied on the ringing of the bell or the sounding of the whistle (signals usually given at the crossing) will not excuse his failure to look and listen, since the obligation to use care was equally imposed on each, and the negligence of one would not excuse the other.'

(10) Excepts because his honor erred in refusing to charge defendant's nineteenth request, which contained a proper construction of the act therein referred to, said request being as follows: 'So much of the statute, approved February 27, 1902 (23 St. at Large, p. 1071), as allows punitive damages, is in contravention of the Constitution of this state and the United States, in that it deprives the defendants of their property and turns it over to strangers without due process of law.'

(11) Excepts because his honor erred in charging the jury as follows: 'But if you find the defendant was negligent, and the contributory negligence of Osteen does not defeat her right to recover, you will compensate for her injury. In doing so, you take into consideration the age of her intestate, his earning capacity, his expectancy of life. Common sense and reason will teach you, as a rule, that the value of lives are different, depends somewhat on the length of time a man is expected to live and his capacity to earn money, and the value of his life to his family. You also will take into consideration the wounded feelings, grief, and sorrow and mental anguish of his widow and children, and give plaintiff such sum as in your honest, wise judgment you think is proportioned to the injury resulting from the death of Mr. Osteen to the parties for whom and whose benefit this action is brought. If you find from the testimony that the Southern Railway Company was also guilty of reckless, willful, wanton disregard of his rights, then you will add to that sum such amount as you think they ought to be required to pay as punishment for their wantonness'--whereas, under the statute (23 St. at Large, p. 1071), the jury can only give exemplary damages 'where such wrongful act, neglect or default was the result of recklessness, willfulness or malice, as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought'; and cannot give such amount as the jury think the defendant ought to be required to pay as punishment for their wantonness, without reference to the injury resulting to the parties for whose benefit the action was brought.

(12) Excepts because his honor erred in charging the jury: 'If you find from the testimony that the Southern Railway Company was also guilty of reckless, willful, wanton disregard of his rights, then you

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