Thornhill v. Davis

• Decision Date: 02 June 1922
• Docket Number: 10892.
• Parties: THORNHILL v. DAVIS, DIRECTOR OF RAILROADS.
• Court: South Carolina Supreme Court

113 S.E. 370

121 S.C. 49

THORNHILL v. DAVIS, DIRECTOR OF RAILROADS.

No. 10892.

Supreme Court of South Carolina

June 2, 1922

Appeal from Common Pleas Circuit Court of Greenville County; George E. Prince, Judge.

Action by Annie Thornhill, as administratrix, against James C Davis, as Director of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed.

Bonham & Price, of Greenville, for appellant.

Martin & Henry, of Greenville, for respondent.

EDMUNDS A. A. J.

This action was brought by Annie Thornhill, as administratrix of the estate of her deceased husband, against James C. Davis Director General of Railroads, as agent under the Transportation Act of 1920. 41 Stat. 456. As the treatment of the case shows throughout trial, and upon argument in this court, the action was based upon the statutory liability created under the act of Congress commonly referred to as the federal Employers' Liability Act (U. S. Comp. St.§§ 8657-8665).

As originally drawn, the complaint alleged damages to the intestate's wife and children as his personal representatives, heirs at law, and distributees on account of the alleged injuries sustained by them in the loss by death of the husband and father. However, by an amendment to the complaint, which, as is stated in the case for appeal, was allowed as a separate cause of action, damages were asked in addition for the pain and suffering, in the particulars alleged, endured by the deceased on account of the injuries inflicted and from which he subsequently died.

The answer, in addition to denying the allegations of the complaint setting forth the alleged delicts on the part of the defendant, sets up the defenses of contributory negligence and assumption of risk. The issue thus being joined, the action came on for trial before Hon. George E Prince and a jury at the April term, 1921, of the court of common pleas for Greenville county.

Motions were made by the defendant for a nonsuit, and for a direction of verdict, both of which were overruled. Subsequently a verdict was rendered by the jury in favor of the plaintiff in the form which will hereinafter be referred to more particularly in considering the exceptions relating to the form of the verdict.

The plea of contributory negligence on the part of the plaintiff's intestate, and the testimony relating thereto, form the basis of one of the principal exceptions made by appellant. We will accordingly take up the consideration of this matter first.

Contributory negligence as a defense is applicable to an action under the federal statute to the extent, but to the extent only, of operating to minimize the damages in case the jury should find that the injured party was guilty of contributory negligence in the particulars alleged in the answer. The appellant contends that this rule does not apply in the present case, for the reason that the testimony established, not merely contributory negligence on the part of the plaintiff's intestate, but established contributory recklessness and willfulness. The answer with great particularity alleges the facts constituting the defense of the alleged contributing cause on the part of the deceased, alleging that--

He had gone "to the end of said string of cars for the purpose of seeking shade and sat upon the rail at the end of the car; * * * that in this position * * * the engine * * * coupled up * * * to the said car at the opposite end of said string of cars, the impact of which caused the car against the wheel of which the deceased was leaning to run over and kill the deceased; and that the deceased was negligent of his own safety."

The assignments of error under the seventh, eighth, thirteenth, and seventeenth assignments are that the trial judge erred in overruling the motion for a directed verdict upon the ground that the testimony showed that the deceased met his death by his own gross negligent and careless act, as was set up in the defense referred to, and, further, that the trial judge erred in failing to charge the jury that the plea of "contributory recklessness or willfulness" was a complete defense under the federal Employers' Liability Act--that is to say, that while the defense of contributory negligence merely operates in mitigation of damages, on the other hand contributory recklessness or willfulness operates as a bar to the action when established by competent testimony.

While it is not essential to our conclusion upon the exceptions raised relating to this matter, it may be remarked that Congress in limiting the force and effect of contributory negligence in an action of this character had in mind the changing of the application of the rule of evidence in such cases. Instead of such evidence operating to defeat the right of action entirely, after the passage of the act, in cases brought under the act, such evidence operates only to a reduction of the damages which the plaintiff would otherwise, in the absence of such contributing cause, be entitled to receive. Under this rule of law, the matter of contributory negligence and the degree thereof, if any, becomes one for the jury to consider in determining the amount of damages which should be awarded in case it should be found that any damages were recoverable. The reduction in amount then would vary with the degree of negligence operating as a contributing proximate cause to the injury by the injured party--if slight, the jury would be warranted in making a slight reduction in the amount which it would have otherwise awarded; if great, it would be warranted in making an entirely different estimate of the amount to which the damages should be reduced. The allegations of the degrees of negligence and the proof thereof are matters then to be considered by the jury in reaching its conclusion as to the amount to be awarded after having concluded that a case of liability has been established. In any event, of course, it is essential that liability must be established, and the necessity therefor eliminates recovery when the injury complained of is caused solely by the act of the one injured, whether it be done by him either negligently or recklessly. There is left open, however, in all cases where the evidence is conflicting, the determining by the jury of the amount of recovery, and the proper reduction thereof to be varied, as we have said, in degree according to the degree contributed by the injured party to his injury.

Whether then there was error on the part of the trial judge in the particulars assigned depends upon whether from the testimony it was to be concluded as a matter of law that the deceased came to his death solely on account of the acts alleged in the answer by way of affirmative defense, or whether there was an issue of fact with regard thereto to be submitted to the jury. The appellant assumes that the defense was established by uncontradicted testimony, and that the only conclusion which could be drawn from the testimony was that the plaintiff's intestate, as stated in the motion, met his death "solely by reason of his own gross negligent and reckless conduct" in the particulars set forth in the motion. That the testimony was susceptible of an entirely different construction, that a clear issue of fact was made, and that the issue on this point was one to be passed upon by the jury is apparent from the reading of the testimony. The jury could have adopted appellant's view, or it could, as it did, adopt the plaintiff's view, namely, that the plaintiff was performing his duties as foreman of a maintenance force clearing the tracks of the appellant, in which work the plaintiff was actually engaged at the time when, without warning and without observing the proper precautions under the circumstances alleged, and as testified to, the plaintiff's intestate was run over and killed by the train operated by the defendant. The trial judge, however, with a conflict of testimony on the issues thus joined, could not adopt either view--to have done so would have been error--and his refusal to do so was proper. The assignments of error relating to these matters cannot therefore, be sustained.

The assignments of error under the first, second, third, fifteenth, and sixteenth exceptions may be considered together. These assignments relate to the amendment to the complaint allowed by the trial judge. In the first place, the amendment allowed is not to be treated merely as an additional allegation. The case containing exceptions sets forth:

"Defendant objected to the proposed amendment, and after some evidence had been taken, the Court allowed the same, stating at that time and thereafter, that he considered it was a separate cause of action."

The matter of allowing amendments either before trial or during trial to conform to the facts proven, so long as the amendment does not violate a rule of law, is generally a matter of discretion with the trial judge, and in the absence of an abuse of that discretion will not be disturbed. The amendment here allowed was one made pursuant to notice according to the rules of court under which an additional cause of action was incorporated in the complaint, alleging damages to the plaintiff's intestate on account of the suffering sustained by him growing out of the alleged negligent conduct on the part of the defendant. The "case" does not state upon what ground the defendant objected to the allowance of the amendment, but upon argument before this court the position is taken that the error in allowing the amendment constituted error of law, for the reasons: (1) That the death of the deceased was so close to the injury as to negative the idea of legal damages for suffering; (2) that under the law as announced by this court, a cause of action for physical pain and suffering of the...