Thornton v. Seaboard Air Line Railway

The opinion of the Court was delivered by Mr. Justice Watts. *379 1, 5 *378 This was an action by plaintiff for the alleged wrongful killing ofjplaintiff’s intestate, J. E. Thornton, by the defendant, for damages under the Federal Employers’ Liability Act. The cause was tried before his Honor, Judge Prince, and a jury, at the April term of the Court, 1913, for Abbeville countjL and resulted in a verdict in favor of the plaintiff for $8,500. After entry of judgment, the defendant appeals and by nineteen exceptions, some of which are subdivided, complains of error on -the part of his. Honor, but raises practically six questions : First. Error in allowing the plaintiff to1 amend her complaint. At the hearing of the case in this Court the defendant abandoned this exception. The second question raised by the exceptions alleges error in refusing to *379 direct a verdict for the defendant, moved for as set out in exceptions two, three, and four. It is so well settled that if there is any competent testimony to' go to the jury, a nonsuit can not be granted or verdict directed, that quotation of authority is unnecessary. It has been further decided that the failure to’ prove one of several acts of' negligence alleged does not furnish any ground for the direction of a verdict. Cain v. Railroad Co., 74 S. C. 90, 54 S. E. 244. “Whenever there is any competent testimony it is the duty of the Judge to submit the case to' the jury.” Buist Co. v. Mercantile Co., 73 S. C. 48, 52 S. E. 789. There is no- dispute that the plaintiff’s intestate was killed by the train, that the yards were„not lighted, and the evidence shows that there was no one on the back of the cars to giving warning, and there is no contention that any warning was given. The question, then, is : Was the plaintiff’s intestate wrongfully or negligently killed by the defendant company, its agents, or servants? A case is usually made out by the positive testimony of eyewitnesses, to a transaction, who swear they saw the occurrence, and describe how it occurred. In this case we have no positive testimony as to how it occurred as no witness saw how it happened, and we must resort to the evidence of circumstances to arrive at a conclusion as to' how it occurred, and say whether or not there was sufficient evidence in the case for his Honor to submit the question to the jury, as to whether or not deceased was killed negligently, by the defendant, in any of the particulars alleged and specified in the complaint. There was evidence in the case to show that when the deceased left the office, to inspect train No. 25 coming into the yards, at the same time a switch engine, with a number of cars back of it, was coming down the yard. On this switch engine train there was no' light on the rear of the train, which was the front part as it was pushed down the yards, and no one was going ahead of it to warn the other employees in the yard. No one was on the front of the leading car as *380 required by the rules. There was no light on the end of the cars, and no warning was given of its approach. Train No. 35 • was coming in on main line when deceased started to inspect it. The switch engine and cars were backing down track No. 1 at the same time train No. 35 was coming in the yard. Thornton was missed by White when he started to inspect train No. 35. His evidence is that there was a car, five or six cars from the caboose, that had some flat wheels and he stopped there to see about the wheels and also looked for Thornton, but did not see him as he was not on the other side of the car where he should have béen. White and Thornton, the inspectors-, were accustomed to walk down to the train as it came into the yard, watch the train as it passed by, so that by the time the train stopped they would be at the rear of the train-when they would start the inspection. On this night White, one of the inspectors, got to the station but saw nothing of Thornton. After inspecting the train on both sides- and still seeing nothing of Thornton he mentioned this to- several persons and reported to them that Thornton was missing. White then inspected two- trains before he heard that Thornton had been killed. When- White first saw him after he -was killed he was lying on track No-. 1, south of the office, at -the shops. It would appear from the evidence that he was killed on the north side of the office and dragged down track No. 1 to- the south side. The cars that were cut were backed down track No. 1 for the purpose of attaching them to the rear end of train No. 35, which was to rqn from there to Atlanta as a double-header. The evidence further shows that the cap and torch of Thornton were found' last, on north of office, the cap between track No. 1 and the main line, -the- torch about two- yards -off, some parts of his clothing were found in the middle of track No. 1, and there were signs that he had been dragged in the middle of track No. 1. The conductor of train No. 35 having heard of deceased’s- death examined his- train at Elberto-n, Georgia; he found pieces of flesh on the ninth car from the *381 caboose, and on up for several cars towards the engine, thus creating an inference that the cut off cars when they were backed down track No. 1, might have run over and killed Thornton, and then dragged the body down the track towards the depot, and then dragged it back past the office to the south side of the office. A number of cars had run over him. Eighteen cars from the rear end had been shoved down the track. The sighs of dragging were first seen about one hundred and fifty yards north of the office, and there were signs that he had been dragged down approximately one hundred yards north of the office. The evidence was that the yard was dark. It was in evidence that the ■boy, who1 found the body, could not tell what it was until he struck a match. There was evidence that another train, No1. 22, came in after Thornton went out to inspect No. 25, and left before his body was discovered, and it is not clear what time this train No. 22 came in by the evidence. Engineer A. J. ’Andrews testifies that he is an engineer, lives at Abbeville, and his run is between Monroe and Atlanta; that he remembers the night Thornton was killed, and that No. 25 came in that night about twelve o’clock, and that it came in ahead oí No. 22, and that No. 25 was the train that Thornton should have inspected, and he thinks that No. 22 came in about twelve-thirty; that No. 22 was due to> leave at one-twenty and left on time. As has been said there is no eyewitnesses to the killing. There is nothing proven by eyewitnesses as to whether the negligence oí defendant, or negligence of deceased, or his contributory negligence, caused the accident. The evidence shows deceased was in a normal condition of mind when he left to inspect the cars, and there is no suggestion that he committed suicide. In the absence of proof to the contrary the presumption is that he was attempting to carry out the duties of his employment, for which he had contracted, with due care and precaution, and while plaintiff cannot recover unless some of the specifications of negligence alleged are proven and it is shown in some way that *382 the defendantwas derelict in its duty and this dereliction and negligence was the proximate cause of the injury, yet this can be established by facts and circumstances proven to establish these particular facts, and while one fact or circumstance proven may not be sufficient to- establish a particular fact a number of facts proven, combined together, may make out a chain of circumstances that establish a fact, and this chain of circumstances in this case may establish on the part of the plaintiff the negligence in whole or in part alleged in her complaint as the basis for recovery of damages. As was said by Mr. Chief Justice Gary in Smyly et al. v. Colleton Cypress Co., 95 S. C. 347, 78 S. E. 1026: “The plaintiffs relied upon a number of facts and circumstances, and while no particular one is sufficient to show that they were in possession of the lands at the time mentioned, nevertheless, when the facts are considered as a whole, they satisfy us that the nonsuit was properly refused.” The rule is thus stated^ in Railroad, v. Partlaw, 14 Rich. 237: “It may be that no-one of the facts would of itself warrant the inference and yet when taken together they would produce belief, which is the object-of all evidence.” In Greenleaf Evidence, section 51a, it is said: “It is not necessary that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof although alone it might not justify a verdict in accordance with it.” In the case of Choctaw, O. and G. R. Co. v. McDade, 191 U. S. 64, 48 L. Ed. 96, 24 Sup. Ct. 24, the Court said: “There was- evidence tending to' show that McDade, a brakeman in the employ of the company, was killed on the night of August 19, 1900, while engaged in- the discharge of his duties as head brakeman on a car on one of company’s trains. McDade was at his post of duty, and when last seen, was transmitting a signal from the conductor to- the engineer to run past the station of Goodwin, Arkansas, which the train was then approaching. The train passed Goodwin at *383 the rate oí 20 to 25 miles an hour. ' At Goodwin there was a water tank, having attached thereto an- iron spout, which, when not in use, hung at an angle from the side of the- tank. Shortly after passing Goodwin, McDade was missed from the train, and, upon search being instituted, his lantern was found near the place on the car where he was at the time of giving the signal. His body was found at a distance of six hundred and seventy-five feet beyond the Goodwin tank. There was also testimony tending to- show, from the- location of the water spout, and the injuries upon the head and person of McDade, that he was killed as a result of being struck by the overhanging spout. The car, upon which McDade was engaged at the time of the injury, was a furniture car, wider and higher than the average car, and of such size as to make it highly dangerous to- be on top of it at the place it was necessary to- be when giving signals, in view -of the fact that the spout cleared the car less than the height of a man above the car when in. position to perform the duties required of him. There was no- eyewitness to the •exact manner of -the injury to- McDade, and it is urged that •the Court below should have taken the case from the jury because of the lack -o-f testimony upon this point. It was left to -the jury under proper instructions to- find out whether McDade came to- his death in- the manner stated in the declaration, and the Court distinctly charged that, unless satisfied of this, there could be no verdict against the- railroad ■company. While the evidence was circumstantial, it was ample, in our opinion, to warrant the submission of' this ■question to the jury under the instructions given.” So-, we say in the case at bar, without further discussion ■of the testimony, after carefully studying" the same, that the ■evidence of circumstances was ample for his Honor to submit the case to the jury, and these exceptions are overruled. *384 G, 8 *383 As to> the third and fourth questions to- be determined by the Court, which are the exceptions that complain of error on the part of the Judge in charging in regard to-the married *384 daughter, and in’charging as to what children could expect of a parent, and in charging as to increased earning capacity, we do not think, after carefully going over the Judge’s charge as a whole, that the defendant was probably prejudiced thereby to such an extent as 'to warrant a reversal by this Court. He told them in the plainest terms he could use, and emphasized this by repetition, that the law “only intended to reimburse' the family dependent upon the husband, whose death was caused by the wrongful act of another, you can allow such damages as those persons are reasonably expected to' receive, and no more. You have a right in determining this to consider the ages of these children. You have a right to consider the fact that even though a child be of good physical capacity, and intellectual capacity, as long as he is a minor, it would have the right to reasonably be supported or maintained by his father. You would have the right to consider the fact that the daughter is-married, if she is married. You would have the right to take into consideration the question as to whether she would have reasonably expected any contribution to1 her support from her father, if living. Would he probably have granted-it ? While you may allow the children to’ recover under this act who are beyond the age of twenty-one years, it must be by reason of some inability or incapacity of the children to earn a livelihood, because this act was intended to compensate people who- are dependent relatives, who are dependent upon the deceased for support, and only to- the extent to which they are dependent.” In another part of his charge he charged: “All you can take into' consideration is- the loss of financial support; it makes no difference under this act what the earning capacity of the deceased, it matters not how much money he might have earned, it has nothing to do with this case. The question is: How much did he contribute to the support and maintenance of his wife and children? That is the question, and the burden rests upon the plaintiff to show how much he contributed, and the plaintiff can only *385 recover in this case, if she is’entitled to recover at all, the amount she has shown by the greater weight of evidence that she and her children have been deprived of by the death of her husband.” We do- not think that his Honor’s modification of the defendant’s ninth request to' charge complained of by defendant’s thirteenth exception should be sustained as the jury could not have been misled by it, or the defendant prejudiced thereby, even if it were erroneous it was harmless, as there was nowhere any evidence at all that the deceased contributed one cent to- his married daughter, or that she was in any way dependent upon him, and his Honor repeatedly explained in this case that the recovery could only be' for his wife and children dependent upon him, to the amount only that he contributed to them, and we see no error on the part of his Honor in the particulars complained of. We see no- error on the part of his Honor in modifying defendant’s eighth request to charge, complained of in defendant’s fourth exception, for the reason that in his charge hehas informed the jury that it was-immaterial to the question how much the deceased, the husband, earned. But “the question is, how much did he contribute to the support of his wife and children?” If he was in error it was harmless and not prejudicial taken in connection with his charge. But we say, in- being requested to charge the eighth request of defendant, he had the right to add to- it and charge as- he did. ' He announced a sound proposition of law. 9 The fifth question to determine is- that made by the exceptions, which allege error in charging the law as- to assumption of risks. These exceptions cannot be sustained. To have held this would have been in conflict with Employers’ Liability Act as construed by the Supreme Court of the United States in the case of Mondou v. New York, New Haven and Hartford R. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 156, Lawyers’ edition 327. His Honor’s charge in reference to- this was more favorable to- the defendant than defendant was entitled to, and defendant cannot complain. *386 The sixth question to1 be determined is that made by exceptions fourteen, fifteen and sixteen, alleging error in refusing to charge defendant’s seventeenth, eighteenth and nineteenth requests. The fourteenth exception is overruled by what has- been said herein as to assumption of risk. 10 The fifteenth exception is overruled for the reason it would have been a charge on the facts; and exception sixteen is overruled as his Honor had in his own language charged the law embodied therein before the requests was presented to him and in substance charged this request. After a thorough investigation and consideration of all the exceptions, the same are overruled and judgment affirmed. Mr. Justice Gage did not sit in this case. Note.—This case has been canted on writ of error to the United States Supreme Court. Footnotes [1] Footnote.—On the question whether a servant may assume the risk of dangers created by the master’s negligence, see notes in 4 L. R. A. (N. S.) 848, and 28 L. R. A. (N. S.) 1215. Also see notes on assumption of risk on failure of master to perform statutory duty, in 6 L. R. A. (N. S.) 981, 19 lb. 646, 22 Tb. 634, 33 lb. 646, 42 lb. 1229, 49 lb. 471; 4 Am. & Eng. Ann. Cases 599, 13 lb. 36, and in Ann. Cas. 1913, C. 210. As to the distinction between the rule res ipsa loquitur and the rule as to circumstantial evidence of negligence. See note in 6 L. R. A. (N. S.) 337.