Wragge v. South Carolina & G.R. Co.

• Decision Date: 14 July 1896
• Parties: WRAGGE v. SOUTH CAROLINA & G. R. CO.
• Court: South Carolina Supreme Court

25 S.E. 76

47 S.C. 105

WRAGGE v. SOUTH CAROLINA & G. R. CO.

Supreme Court of South Carolina

July 14, 1896

Appeal from common pleas circuit court of Charleston county Aldrich, Judge.

Action by Caroline A. Wragge, administratrix of the estate of Henry H. Wragge, deceased, against the South Carolina & Georgia Railroad Company, for damages for causing the death of her intestate. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Judge Aldrich's charge to the jury, which is referred to in the opinion, was as follows:

"This is an action brought by the plaintiff, Mrs. Caroline A Wragge, as administratrix of the estate of Henry H. Wragge deceased, against the South Carolina & Georgia Railroad Company, to recover the sum of $30,000. It is my duty to construe the pleadings, and to inform you as to the issues before the court, and perhaps I can best explain them by saying to you in brief language that, some years back, an injury which resulted in the death of a person, or the cause of action resulting therefrom, died with the person. This state--I think it was in 1859--adopted the English statute, which allowed the executor or administrator of the person who was killed through the negligence of any person or corporation to bring an action for the benefit of the wife and children, based upon the killing of the husband. The act to which I refer says that such administrator may bring an action for the benefit of the heirs at law or distributes of the person whose death has been so caused as may be dependent on him for support. Mrs. Wragge, it is admitted here, is the administratrix of the estate of her late husband, Henry H. Wragge, who, it is admitted, is dead; and that his death was occasioned by a collision with a railroad engine and cars of the defendant company; so that the next inquiry to which I will invite your attention is as to the complaint.

"The complaint alleges, after stating that Mrs. Wragge is the administratrix of her deceased husband, and, after setting out the names of his wife and children, and their ages, and that the action is brought for their benefit, goes on to say 'That a public road and way leads from the Atlantic Phosphate Works over and across the track of the defendant to the Meeting street road, in the county and state aforesaid that on the afternoon of the 14th day of February, Henry H. Wragge, the plaintiff's intestate, was travelling in a vehicle drawn by one horse along the aforesaid road and way from the Atlantic Phosphate Works to the aforesaid Meeting street road, which said road and way crosses the railroad of the defendant at a certain place known as "Atlantic Crossing," and as the said Henry H. Wragge had reached said crossing the defendant carelessly, negligently, and recklessly caused one of its locomotives, with a train of cars attached thereto, to approach said crossing at a very high rate of speed, and then and there to pass rapidly over the track of the said railroad, and negligently, carelessly, and recklessly omitted, while so approaching said crossing, to give any signal by ringing a bell or sounding a steam whistle of said locomotive, as required by law, by reason whereof the aforesaid Henry H. Wragge was unaware of the approach of the said locomotive and train of cars attached thereto; that by reason of the aforesaid negligence of the defendant, and while the said Henry H. Wragge was lawfully upon and passing over said crossing, said locomotive struck the said Henry H. Wragge, where by he was so seriously injured that he soon thereafter died; that the said Caroline A. Wragge, Daisy Estelle Wragge, James H. Wragge, and Thomas H. Wragge, for the benefit of whom this action is brought, are the widow and children of the deceased, respectively, and were entirely dependent upon him for their subsistence, and sustained by his death great pecuniary injury and damage, viz. $30,000; wherefore the plaintiff prays judgment against the defendant for the sum of $30,000, and for her costs and disbursements.' I charge you that under that complaint the cause of action set out there is for the alleged killing of Mr. Wragge at the place or way or road mentioned in the complaint.

"Negligence is a mixed question of law and fact, and where one sues another for negligence it is incumbent upon the pleader to set out the facts upon which he bases his action; and in this connection it is necessary to refer to sections 1685 and 1692 of the Revised Statutes of 1893, as bearing directly upon this case. Section 1685 provides: 'That a bell of at least 30 pounds weight and a steam whistle shall be placed on each locomotive engine, and the bell shall be rung or the whistle sounded by the engineer or fireman at a distance of at least 500 yards from the place where the railroad crosses any public highway or street or traveled place, and be kept ringing or whistling until the engine has crossed such highway or street or traveled place, and if the engine or cars shall be at a stand still within a less distance than 100 rods of such crossing; the bell shall be rung or the whistle sounded for at least 30 seconds before the engine shall be moved, and shall be kept ringing or sounding until the engine shall have crossed such a public highway or street or traveled place.' Now, the next section (1692) says: 'If the person is injured in his personal property by collision with an engine or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this article, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment, unless it is shown that in addition to the mere want of ordinary care the person injured, or the person having charge of his person or property was at the time of the collision guilty of gross or willful negligence, or was acting in violation of law, and that such gross or willful negligence or unlawful act contributed to the injury.' Now, in passing, I would refer to a remark appearing in an opinion of the supreme court in the case of Kaminitsky v. Railroad Co., 25 S.C. 64, which says: 'We do not, however, consider that by the aforesaid provision the main object of the legislature was to make a change in the law of evidence, but to induce compliance with the previous requirement as to signals. The rule of evidence as to negligence was made to apply only in case of failure to give the required signals, and it is manifest that the purpose was to give an additional sanction to the provision requiring the signals to be given.' Now, in connection with the law, I had better take up the requests to charge. The defendant has put in an answer denying the allegations of the complaint, and as a further defense alleges that an accident would not have happened but for the gross negligence of the plaintiff. The law requires me to pass upon these requests to charge, and, as they are very numerous, I shall pass upon them, and instruct you as to the general law.

"The first request of the plaintiff is as follows: 'By the statute law of this state a railroad company is required to have a bell of at least 30 pounds weight and a steam whistle placed on each locomotive engine, and such bell shall be rung or such whistle sounded by the engineer or fireman at the distance of at least 500 yards from the place where the railroad cross any public highway or street or traveled place, and be kept ringing or whistling until the engine has crossed such highway or street or traveled place.' That is correct, and I so charge you.

"Now, the defendant's request, bearing upon the same subject, is defendant's first request: 'That this action is brought by the administrator of the deceased against the railroad company under the provisions of sections 1685 and 1692 of the Revised Statutes of 1893, being respectively sections 1483 and 1529 of the General Statutes of 1882.' That is correct.

"Now, the second request of the defendant is as follows: 'That section 1685 requires the ringing of a bell of 30 pounds weight, or blowing of a whistle by the engineer or fireman of a locomotive engine at least 500 yards from any crossing of a public road by a railroad track, and that the bell should be kept ringing or the whistle blowing until the locomotive passes the crossing.' That is correct, and I so charge you.

"The second request of the plaintiff is as follows: 'If the testimony satisfies you that Henry H. Wragge was injured in his person by collision with the engine or cars of the defendant at the crossing in question, and that such crossing was a public highway or street or traveled place, and it appears that the corporation neglected to give the signals required by section 1685 of Revised Statutes, and that such neglect contributed to the injury, the defendant corporation is liable for all damages caused by the collision, unless it is shown that, in addition to a mere want of ordinary care, the person injured was at the time of the collision guilty of gross or willful negligence, or was acting in violation of the law, and that such gross or willful negligence or unlawful act contributed to the injury.' That is correct. The plaintiff alleges that the injury occurred at a public road and way, and the plaintiff must prove his case as stated in his complaint. I shall go back presently to that question of public road or way.

"The third request of the defendant is as follows: 'That section 1692 makes any railroad company neglecting to give the signals required by the statute liable in damages for any injury to any person at the crossing of a public road provided that failure to give such signals was a proximate cause of the injury.' That request I shall have to modify...