Price v. Richmond & D.R. Co.

• Decision Date: 11 May 1893
• Citation: 17 S.E. 732,38 S.C. 199
• Parties: PRICE v. RICHMOND & D. R. CO.
• Court: South Carolina Supreme Court

17 S.E. 732

38 S.C. 199

PRICE v. RICHMOND & D. R. CO.

Supreme Court of South Carolina

May 11, 1893

Appeal from common pleas circuit court of Richland county; James Aldrich, Judge.

Action by Emma W. Price, as administratrix of Philip H. Price against the Richmond & Danville Railroad Company, to recover for the alleged negligent killing of her intestate by defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

B. L Abney, for appellant.

Melton & Melton and R. W. Shaw, for respondent.

McGOWAN J.

This was an action brought by the plaintiff, as administratrix of Philip H. Price, her late husband, to recover compensation in damages, for the killing of her husband, the intestate, by the alleged fault of the defendant company, under the provisions of the act of 1859, now incorporated in the General Statutes as sections 2183-2186. The case has been in this court before. See Price v. Railroad Co., 33 S.C. 557, 12 S.E. Rep. 413, where the general facts will be found. It there appears that on February 18, 1887, Philip H. Price, the conductor of a freight train on the Columbia & Greenville Railroad, (then operated by the defendant company,) received a blow upon his head from the projecting roof of a shed at Alston, while he was standing on the top of his train, in motion, and engaged in putting on brakes. From the effects of this blow he died in the November following. In February, 1888, his widow took out letters of administration upon his estate, and instituted this action, as such administratrix, for the benefit of herself and the only child of intestate, claiming $20,000 damages for the negligent killing of intestate. The defendant company, after denying all allegations of negligence, made further defense that after the alleged injury, and before the commencement of the action, the said intestate, for the consideration of $390, executed a paper acknowledging satisfaction for all damages resulting from the alleged injury, and relieving the defendant company from all liability therefor. (Copy of this paper appears in the report of the case above stated.) After the plaintiff had closed her testimony in chief the defendant company moved for a nonsuit upon the ground that there was no evidence of negligence to go to the jury, but the motion was refused. The company then went into its defense, and, among other things, proposed to prove the release above referred to, executed by the intestate in his lifetime, set up as one of the defenses in the answer, which, upon objection by the plaintiff, was held to be inadmissible. The jury found a verdict for the plaintiff for $6,976, and the defendant company appealed to this court from the judgment, upon various grounds; and this court, holding that it was error in the trial judge to refuse to admit in evidence the aforesaid release, set aside the judgment below, and ordered a new trial. Accordingly a new trial was had by Judge Aldrich and a jury. The defendant corporation was granted leave to amend their answer in several particulars, and, after interposing a general denial of all allegations as to negligence on their part, made answer as follows: "(6) For further defense defendant alleges that after the time of the alleged injury, before the commencement of this action, the defendant delivered to plaintiff's intestate, P. H. Price, and the said P. H. Price received from the defendant, the sum of $320, in full release, satisfaction, and discharge of all claim for damages resulting from the alleged injury. (7) For a further defense the defendant alleges that the said P. H. Price received his injuries while attempting to shift the cars upon the side track at Alston in a manner prohibited by the rules of the company, under which he was directed to work, and that he neglected to use the means provided by the defendant for shifting its cars into the siding at such place and time, and that, by reason of such violation and neglect of the rules of the company, he became injured. The defendant further alleges that, at and before the time of the accident to the said P. H. Price, he was well aware of the position of defendant's tracks, station houses, and shed at Alston, and knew the danger of attempting to pass under said shed on top of a box car, but that he, regardless of such knowledge, so negligently acted and conducted himself that he remained upon said box car while the same was passing under the overhanging roof of the shed, and thereby contributed to and caused his own injury," etc.

The plaintiff put in no formal reply to this answer, but upon these pleadings the parties went to trial. As in the first trial, upon the close of the plaintiff's direct evidence a motion was again made for a nonsuit, on the ground that there was no evidence of negligence to go to the jury, but the motion was refused; and the defendant corporation proceeded to offer their evidence, including the said release, which, in accordance with the previous decision of this court, was held to be competent, and admissible in evidence. The counsel for plaintiff claimed the right to attack the release, although in evidence, upon the grounds "that at the time it was signed by the intestate he was non compos mentis,--incapable of making a contract; that the consideration of the alleged contract was wholly inadequate coupled with mental and moral weakness superinduced by under influence, arising from physical distress, pecuniary necessity, inequality of position,--'in vinculis,' as the law terms it,"--while it was contended by the counsel for the defendant "that this release--discharge--has been pleaded in bar to the action. No reply was made to it, and therefore it comes before the court as with simply a general denial. The purpose that has been disclosed by counsel is to avoid the release and discharge on the ground that it was procured and obtained under such circumstances, and in such way, that good faith and good conscience ought not to permit it to stand. This is a matter peculiarly applicable to the equitable powers of this court. They admit, in what counsel has suggested to the court, that this release was properly executed, and that it is the act and deed of the party, but that it ought not to estop--stand in the way of--the party himself, or his representatives. Now in this way their claim of damages came, that it was obtained under such circumstances and under such inducement as would operate as a fraud upon his right. That is within the peculiar jurisdiction of the court," (of equity, as we suppose.) The court ruled as follows: "This is an action at law. You put this in your answer,--set up this release as a bar. The Code provides that the pleadings shall end at the answer, except as to new matter and especial provisions brought out. That means a general denial,--it is to be presumed that all matters in the answers are denied. Then the question as to the validity of that release would come up naturally under the denial provided for in the Code,--the general denial supposed to be interposed by plaintiff to any matter set up in the answer,--because a special reply is only required in cases of counterclaim, and the special provisions provided in the Code. Therefore, I think, under the statement of counsel, that his denial of the validity of the release will be an important point in the progress of the case. I think any evidence that is relative to the question as to the validity or invalidity of that release or discharge is competent," etc. He asked the counsel for the plaintiff if they set up non compos mentis, and, being answered in the affirmative, he said: "Then go on under that promise. If you don't do it, I will strike it out." The defendant company put the release in evidence, under the former decision of this court. The plaintiff denied its validity upon the grounds indicated, and upon that point the defendant was allowed the reply in evidence. A volume of testimony was then offered upon the subject, consisting largely of a long correspondence between the authorities of the railroad company and the intestate. There were requests to charge, some of which were charged; others, in part; and still others were refused. The jury found for the plaintiff, $5,500. The defendant made a motion for a new trial on the minutes, upon the following grounds: "(1) Because the verdict was against the manifest weight of the testimony; (2) because the verdict was against the overwhelming weight of the testimony; (3) because the verdict was against the law and the charge of the judge; (4) because the jury disregarded the charge of the judge; and (5) because the evidence was not sufficient to support the verdict," etc. The judge refused the motion for a new trial, saying, among other things: "The question comes up,--and right there is where the case turns,--was that pin the proximate cause of the death of Mr. Price? Now the testimony is that he was on the top of the train, handling the brakes, and there was testimony to go to the jury that Price was working at this brake when he was struck. According to the evidence the train could not have been stopped unless the brakes were applied. It is true that Price assumed the risk of the overhanging bridge, or waived his right to demand its removal. If the failure to uncouple the cars was of such a character as to contribute as the immediate cause--the proximate cause--of his death, then the railroad company would be liable. In the case of Carter v. Oil Co., 34 S.C. 211, 13 S.E. Rep. 419, the supreme court say, as Carter had to reach for the sacks, and pull the 'former', which required the operation to be done rapidly, the jury had the right to consider the rapidity with which these matters had to be done. Now, here, Mr. Price, in this case, had to put these brakes on, and put...