Tyner v. Atl. Coast Line R. Co, (No. 12321.)

CourtUnited States State Supreme Court of South Carolina
Citation146 S.E. 663
Decision Date16 November 1927
Docket Number(No. 12321.)
PartiesTYNER. v. ATLANTIC COAST LINE R. CO.

146 S.E. 663

TYNER.
v.
ATLANTIC COAST LINE R. CO.

(No. 12321.)

Supreme Court of South Carolina.

Nov. 16, 1927.


[146 S.E. 664]

[COPYRIGHT MATERIAL OMITTED]

[146 S.E. 665]

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Charleston County; J. W. De Vore, Judge.

Action by C. M. Tyner, as administrator of George A. Marshall, deceased, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Exceptions Nos. 14, 15, 19, 20, and 22, are as follows:

"(14) The presiding judge erred in charging plaintiff's fourth request to charge as follows, to wit:

" 'The jury are instructed that if they come to the conclusion from the evidence in this case that the plaintiff is entitled to a verdict, that the measure of recovery (if you find for the plaintiff), is such amount as will fairly and reasonably compensate the widow of Mr. Marshall and his dependent children for the loss of pecuniary benefits which they might reasonably have received if the deceased had not been killed, not exceeding the amount claimed, to wit, Fifty Thousand Dollars.'

"The error being that the court should have charged that the measure of damages is the present cash value of future benefits which his dependents might have reasonably expected to receive from deceased had he lived, and the request as charged allows recovery for the total sum of pecuniary benefits, with no instructions to reduce such amount to the present cash value thereof."

"(15) The presiding judge erred in refusing to charge defendant's sixth request to charge as follows, to wit:

" I charge you that under the Federal Employers' Liability Act the measure of damages recoverable are limited to such loss as results because the dependent relatives have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. The damage is limited strictly to the financial loss sustained and is always the present cash value of the future benefits of which the beneficiaries were deprived by the death, making adequate allowance according to the circumstances for the earning power of money. The excess earnings of the deceased over the amount reasonably to be expected to be contributed to the beneficiaries cannot be reduced to a cash value and assessed as an element of damage. If you find a verdict for the plaintiff in this case, the verdict should be computed strictly in accordance with these instructions, and the plaintiff is only entitled to a verdict for the present cash value of what the deceased might reasonably have been expected to give to his wife and children, had he lived.'

" 'The Court: Now with reference to your sixth request to charge, that is in reference to damages. I am going to charge as set forth in the plaintiff's request. About the only difference in your request and the plaintiff's is that you state what damages are recoverable and go on to state what damages are not recoverable'

"The error assigned being that said request is a correct statement of the law as to the measure of damages under the Federal Em ployers' Liability Act, embodied principles not covered elsewhere in his honor's charge on damages, and defendant was entitled to have the same charged as requested, and was prejudiced by its refusal."

"(19) The presiding judge erred in charging the jury as follows, to wit:

[146 S.E. 666]

" 'Whenever a master employs a servant, the servant assumes all the risks that are ordinarily incident to the work he is employed to do, just as much as if he was under a written contract to that effect. But the servant does not assume any extraordinary risks, only the risks incident, to his employment. And those are the risks he assumes, any extraordinary or hazardous risks he does not assume.'

"The error assigned being, that a servant assumes extraordinary risks where he knows or appreciates the risk or danger, or where the risk is obvious and is, or by the exercise of due care and prudence would be, known and appreciated by him, and his honor committed error in not so charging, and in charging to the contrary."

"(20) The presiding judge erred in charging the jury as follows, to wit:

" 'Whenever a master employs a servant the servant assumes all the risks that are ordinarily incident to the work he is employed to do, just as much as if he was under a written contract to that effect. But the servant does not assume any extraordinary risks, only the risks incident to his employment. And those are the only risks he assumes, any extraordinary or hazardous risks he does not assume.'

"The error assigned being that a servant does assume hazardous risks, and his honor committed error in charging to the contrary."

"(22) The presiding judge erred in charging the jury as follows, to wit:

" I charge you as a matter of law that there are only two ways, or one of two ways, that the Railroad Company can relieve themselves of liability under this Federal Act, and one is to show by the testimony that the plaintiff's negligence was the sole cause of the injury, or death in this case. If the evidence satisfies you that his negligence was the sole cause of his death then he could not recover. And the other way is to show that he assumed the risk that caused his death, but if the risk was a hazardous risk, that would be one that he does not assume in his contract of hire.'

"The error assigned being that the charge as to assumption of risk is erroneous, the law being that a servant assumes hazardous risks in the course of his employment, and his honor erred in charging to the contrary."

Hyde, Mann & Figg, of Charleston, Thos. W. Davis, of Wilmington, N. C, F. B. Grier, of Greenwood, and V. E. Phelps, of Wilmington, N. C, for appellant.

Logan & Grace and Lionel K. Legge. all of Charleston, for respondent.

STABLER, J. On January 6, 1923, George A. Marshall, employed as a switchman by the defendant railroad company, was killed while in such employment. He left surviving him a widow and three small children, for whose benefit this action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59) by the plaintiff as administrator of Marshall's estate. It was agreed at the trial of the case that at the time Marshall met his death both he and the railroad company were engaged in interstate commerce.

The plaintiff, upon information and belief, alleges that, at the time Marshall was killed, he was engaged in the performance of his duties as a switchman on an engine and train of cars moving over defendant's main line of tracks near and in the direction of the city of Charleston; that it was about 3 o'clock in the morning and was dark and foggy; that near the city the train of cars and engine were stopped because of some trouble with the brakes on some of the cars, and that Marshall, in the course of his employment and duty, got down to the ground to examine into and correct the trouble; that the defendant, in violation of its duty to furnish a reasonably safe roadbed and track free from obstructions for the use of its employees, had placed and maintained a signal device or obstruction in such close proximity to the track as not to leave a sufficient space intervening between it and the side of the train, and so close as to interfere with the proper operation of the defendant's trains; and that, upon the train's proceeding forward, while Marshall was mounting the ladder of one of the cars or was examining the defective car referred to, he was struck by the signal device, and was so injured as to cause his death. The plaintiff alleged that Marshall's death resulted from the negligent and reckless acts of the defendant, in the following particulars:

"(a) In failing and omitting to furnish the said decedent a reasonably safe place to work.

"(b) In failing and omitting to furnish a reasonably safe roadbed and track free from obstructions.

"(c) In failing and omitting to place and maintain said signal device at a reasonably safe distance from the track.

"(d) In causing and allowing said signal device or obstructions to be placed and maintained too close to the track.

"(e) In causing and allowing said signal device or obstructions to be placed and maintained in such close proximity to the track as to leave insufficient space between it and the side of a train within which employees might safely perform the duties incident to their employment and the proper operating of defendant's trains.

"(f) In causing and allowing said signal device or obstruction to be at the point, place and position the same was maintained.

"(g) In failing and omitting to notify or warn said decedent of the close proximity of said signal device or obstructions to the side of the train.

"(h) In causing and allowing a defective and bad order box car to be attached to and form a part of the train and to be transport-

[146 S.E. 667]

ed by the engine to which decedent was attached.

"(i) In causing and allowing said engine and train of cars to be run at a high and dangerous and excessive rate of speed within the yard limits and block system of defendant and in violation of its rules and regulations governing the same."

The defendant pleaded that it had compiled with a resolution of the South Caroline Bail-road Commission, set out in its answer, in the erection of the signal device mentioned in the complaint, set up the assumption of risk on the part of the decedent, and pleaded contributory negligence on the part of Marshall, as follows:

"(a) In not going directly to the roof of the freight car on which he was riding as instructed by the conductor of said train, but in remaining on the side of the car, contrary to said orders and instructions.

"(b) In not keeping a proper lookout for the signal devices and other obstructions which are ordinarily erected on the side of tracks of the defendant, near said tracks.

"(c) In failing and omitting to keep a proper lookout for the semaphore mentioned in the Complaint herein, whose presence...

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12 practice notes
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • 9 Abril 1931
    ...we think it was free from harmful error. See Gladden v. Railroad, 142 S. C. 492, 141 S. E. 90; Tyner v. Railroad, 149 S. C. 89, 146 S. E. 663. At the request of the appellant, the trial judge particularly called to the attention of the jury the proposition that, "in crossing cases under the......
  • Long v. Carolina Baking Co, No. 14988.
    • United States
    • United States State Supreme Court of South Carolina
    • 16 Diciembre 1939
    ...in this case. We may, however, present a fairly full compendium of them. In the case of Tyner v.* Atlantic Coast Line Ry. Co, 149 S.C. 89, 146 S.E. 663, 665, the Circuit Judge refused to charge the request of the defendant to the effect that "the damage is limited strictly to the financial ......
  • Youngblood v. Southern Ry. Co, (No. 12737.)
    • United States
    • United States State Supreme Court of South Carolina
    • 25 Septiembre 1929
    ...must be considered at their present value. But it did not ask for any such instruction." In Tyner v. A. C. L. Railroad Co., 149 S. C. 89, 146 S. E. 663, 665, 667, 668, the court charged the plaintiffs fourth request as follows: "The jury are instructed that if they come to the conclusion fr......
  • Powe v. Atl. Coast Line R. Co, No. 12975.
    • United States
    • United States State Supreme Court of South Carolina
    • 19 Septiembre 1930
    ...the South Carolina Supreme Court, which affirmed the decision of the lower court. Tyner, Administrator, v. A. C. L. R. Co., 149 S. C. 89, 146 S. E. 663. The defendant carried the case on a writ of certiorari to the United States Supreme Court and the same was reversed and remanded for a new......
  • Request a trial to view additional results
12 cases
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • 9 Abril 1931
    ...we think it was free from harmful error. See Gladden v. Railroad, 142 S. C. 492, 141 S. E. 90; Tyner v. Railroad, 149 S. C. 89, 146 S. E. 663. At the request of the appellant, the trial judge particularly called to the attention of the jury the proposition that, "in crossing cases under the......
  • Long v. Carolina Baking Co, No. 14988.
    • United States
    • United States State Supreme Court of South Carolina
    • 16 Diciembre 1939
    ...in this case. We may, however, present a fairly full compendium of them. In the case of Tyner v.* Atlantic Coast Line Ry. Co, 149 S.C. 89, 146 S.E. 663, 665, the Circuit Judge refused to charge the request of the defendant to the effect that "the damage is limited strictly to the financial ......
  • Youngblood v. Southern Ry. Co, (No. 12737.)
    • United States
    • United States State Supreme Court of South Carolina
    • 25 Septiembre 1929
    ...must be considered at their present value. But it did not ask for any such instruction." In Tyner v. A. C. L. Railroad Co., 149 S. C. 89, 146 S. E. 663, 665, 667, 668, the court charged the plaintiffs fourth request as follows: "The jury are instructed that if they come to the conclusion fr......
  • Powe v. Atl. Coast Line R. Co, No. 12975.
    • United States
    • United States State Supreme Court of South Carolina
    • 19 Septiembre 1930
    ...the South Carolina Supreme Court, which affirmed the decision of the lower court. Tyner, Administrator, v. A. C. L. R. Co., 149 S. C. 89, 146 S. E. 663. The defendant carried the case on a writ of certiorari to the United States Supreme Court and the same was reversed and remanded for a new......
  • Request a trial to view additional results

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