Youngblood v. Southern Ry. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: STABLER, J.
• Citation: Youngblood v. Southern Ry. Co., 152 S.C. 265, 149 S.E. 742 (S.C. 1929)
• Decision Date: 25 September 1929
• Docket Number: 12737.
• Parties: YOUNGBLOOD v. SOUTHERN RY. CO. et al.

149 S.E. 742

152 S.C. 265

YOUNGBLOOD v. SOUTHERN RY. CO. et al.

No. 12737.

Supreme Court of South Carolina

September 25, 1929

Appeal from Common Pleas Circuit Court of Barnwell County; H. F Rice, Judge.

Action by Mary O. Youngblood, as administratrix, against the Southern Railway Company and another. Judgment for plaintiff and defendants appeal. Reversed and remanded.

The defendants assigned as ground for reversal the following exceptions:

"(1) Because his honor, the presiding judge, erred, it is respectfully submitted, in refusing defendants' motion for the direction of a verdict, upon the grounds:

"'(a) That the only reasonable inference to be drawn from the entire testimony is that the death of plaintiff's intestate was caused solely by his own negligence and recklessness.

"'(b) That the entire testimony is susceptible of but one reasonable inference, namely, that the danger of the situation resulting in the death of plaintiff's intestate was so obvious that an ordinarily careful person would have observed and appreciated the same, and hence plaintiff's intestate assumed the risks thereof.

"'(c) That the only reasonable inference to be drawn from the entire testimony is that the injuries resulting in the death of plaintiff's intestate were directly and proximately caused by said intestate's violation of a meet order, which he had signed for and which had not been fulfilled, superseded, or annulled.'

"(2) Because his honor, the presiding judge, erred, it is respectfully submitted, in his charge on the measure of damages, and in failing to charge that only the present cash value of the reasonably expected pecuniary benefits of which the beneficiaries were deprived by the death of plaintiff's intestate was recoverable in any event. In an action for death under the Federal Employers' Liability Act, the principle of limiting the recovery of damages for the deprivation of future payments or other pecuniary benefits to their present value only is an integral part of the statute, and it is respectfully submitted that the failure of the trial judge so to charge was erroneous and prejudicial to the defendants, in that the jury were thereby allowed to award as a present recovery the aggregate amount of such future benefits.

"(3) Because his honor, the presiding judge, erred, it is respectfully submitted, in charging the jury as follows:

"'Now, the master in this case, the railroad company--it is undisputed that Mr. Youngblood had no right to direct the movements of the train. There is no dispute about

that. And when he was directed by the proper officers to get on board that engine, and go to a certain point, it was the duty of the railway company to see that the railroad was kept safe for the movement of the train he was on. A safe place in which to work means a safe place in which he could run that train along that railroad. ***

"'I did not take up with you that matter as to the assumption of risk, and I am glad that request called it to my attention. There is no question about the rule of law that when a man goes into the employ of another to do certain work, and he knows that there are certain risks connected with it,--then the law says that a man who goes in there,-- who goes into a business of that kind, is presumed to assume the risks which are necessarily incident to the work he is about to do. The master must furnish him with a safe appliance to work with, and a safe place in which to work, and when he has done that, then the employé must use ordinary care to protect himself from hurt or injury. ***' (Italics added.)

"This constituted error, in that it imposed upon the appellants herein a greater duty or responsibility than the law requires; it being respectfully submitted that, under the act in question, the law requires only that the employer use ordinary care or exercise reasonable diligence in furnishing the employee with a reasonably safe place in which to work.

"(4) Because his honor, the presiding judge, erred, it is respectfully submitted, in charging the plaintiff's nineteenth request as follows:

"'And on the other hand, you may consider whether or not, if the intestate had lived, his present wages would have increased by reason of experience and increased skill in his occupation.'

"The error being that there was no allegation or proof that plaintiff's intestate expected, or had any reason to expect, any increased earning capacity, or that it was probable, and hence, it is respectfully submitted, the presiding judge erred in allowing the jury to speculate upon this question and to take into consideration matters not raised either by the pleadings or by the proof. Under the Federal Employers' Liability Act, only such damages could be recovered as were proved to have been suffered, and, there being neither allegation nor proof that plaintiff's intestate expected, or had any right to expect, any increase in his wages over and above what he was at that time receiving, the said charge of the presiding judge was harmful to the appellants herein and erroneous.

"(5) Because his honor, the presiding judge, erred, it is respectfully submitted, in charging the jury, immediately following the reading of the defendant's second request, as follows:

"'The defendants charge that Mr. Youngblood consciously and willfully violated the orders which were given to him, and that that violation of orders was the sole cause of his death, and that is the point in the case which this second request applies to.'

"This constituted error, in that it was misleading to the jury and prejudicial to the defendants, for the reason that it was equivalent to instructing the jury that, in order for the defendants to escape liability in this case on account of the intestate's violation of an order, the intestate must have consciously and willfully violated said order; whereas, it is respectfully submitted that, if the plaintiff's intestate brought about his death solely by his own violation of a meet order, it could make no difference, as regards the liability of the defendants, whether such violation was due to willfulness, or a lapse of memory, or any other cause on the part of said intestate.

"(6) Because his honor, the presiding judge, erred, it is respectfully submitted, in refusing the defendants' motion for a new trial, upon the grounds:

"'(a) There is no evidence showing negligence of the defendants as alleged in the complaint.

"'(b) The evidence shows that the injuries resulting in the death of plaintiff's intestate were caused by the intestate's own negligence in violating a positive meet order which he had in his possession, which negligence of the plaintiff's intestate contributed to the accident and to his death as the proximate cause thereof, without which negligence on the part of plaintiff's intestate, the said accident resulting in his death would not have happened.

"'(c) The entire evidence shows that the injuries resulting in the death of plaintiff's intestate were caused by the intestate's own negligence in violating, among other rules of the defendants, rule No. 88, in that plaintiff's intestate failed to have his engine take the siding at Orangeburg, the meeting point, and await the arrival of extra 723, as he was required to do in accordance with said rule and the train order under which his engine was being run, which negligence on the part of plaintiff's intestate contributed to his death as the proximate cause thereof, and without which negligence the accident resulting in the death of plaintiff's intestate would not have happened.

"'(d) That there was no evidence in the case as to the pecuniary value of the intestate's customary contributions to the support of the plaintiff and her children, and hence no evidence on which to base an award of damages, in the event the jury found that the plaintiff was entitled to a recovery.

"'(e) That the jury, in the event they determined that the plaintiff was entitled to damages, were authorized under the charge of his honor, the trial judge, to award the

present recovery of the total principal sum of what the alleged beneficiaries might reasonably have expected to receive in the way of pecuniary benefits from the deceased had he lived, whereas only the present cash value of such sum was recoverable in any event, and the jury were nowhere instructed that the amount recoverable in any event was the present cash value of the future benefits which the alleged beneficiaries could have reasonably expected from the deceased had he lived.

"'(f) That the verdict is grossly excessive." D'

Harley & Blatt, of Barnwell, and Frank G. Tompkins, of Columbia, for appellants.

Wolfe & Berry, of Orangeburg, W. C. Martin, of Branchville, and R. C. Holman and Brown & Bush, all of Barnwell, for respondent.

STABLER J.

On January 3, 1924, Cleveland J. Youngblood, a train conductor employed by the defendants, received injuries which resulted in his death in a head-on collision between two trains of the defendants at or near Stilton, in Orangeburg county, and in May, 1924, the plaintiff, Mary O. Youngblood, as administratrix of his estate, brought this action for damages, alleging that his death was due to negligence on the part of the defendants. At the time he received the injuries Youngblood and the defendants were engaged in interstate commerce, and the action was tried under the Federal Employers' Liability Act (45 USCA § § 51-59). The case was first tried at the March, 1925, term of the common pleas court for Barnwell county. At that trial the presiding judge granted a motion for a directed verdict in favor of the defendants. The plaintiff appealed, and this court reversed the judgment of the lower court, remanding the case for a...