Dutton v. Atlantic Coast Line R. Co.

The opinion of the Court was delivered by Mr. Chief Justice Gary. This is an action for damages, alleged to have been sustained, through the wrongful acts of the defendants, in causing the death of plaintiff’s intestate, who was an employee of the defendant company, and was engaged in the work of car inspector in the yard of the company at Sumter, S. C., when he was killed. The issues raised by the pleadings are thus succinctly stated by appellant’s attorneys : “On or about the 13th day of October, 1913, the said employee, while inspecting cars of an interstate train, went between two of said cars, and was killed almost instantly by the car running over him. The wife of said deceased employee, having qualified as administratrix of his estate, has brought this action for the benefit of herself and her two minor children; and, inasmuch as the deceased was an employee of the defendant company, and engaged in interstate commerce, the Federal Employers’ Liability Act applies. The cause of action relied on in the complaint is based: (1) On alleged acts of the engineer in charge of the train which ran over deceased, ‘in driving said cars back very suddenly and without any warning,’ knocking him down, etc.; (2) on the alleged failure of duty on the part of the defendant company to provide ‘a sufficient number of blue lights or lanterns, so that same might be placed on the end of cars or trains, beneath or between which employees might find it necessary to go, in the discharge of their duty,’ which failure it is alleged, was continued for several months before the accident complained of, and with full knowledge of defendant; (3) on the alleged failure of Hodge, a codefendant and alter ego in immediate control of deceased, to *28 warn deceased of the approaching train that ran over him; (4) on the alleged negligence of the conductor of said train, in allowing said train to be backed without warning; (5) on the alleged negligence of the engineer of said train, in backing said train in response to a signal, which, it is alleged, was given by some employee of the defendant company to another train. The answer sets up: First, a general denial; and, second, the plea of contributory negligence of the deceased, in failing to protect himself by proper signals, before' going beneath said car, and by failing to attend to his duties in preparing the said cars for departure, until immediately before the time for their departure; third, in going under or between said cars when he knew that he was not being protected by the signals provided for by the rules ; when he knew the engine and cars were being backed on the track for the purpose of being coupled to the cars, under which he placed himself.” The case was tried by the Court and a jury, and a verdict rendered in favor of the plaintiff, against the defendant-appellant only, in the sum of $12,000, apportioned among the widow and her two children in equal amounts, to wit, $4,000 each. The defendant company appealed upon numerous exceptions, which will be reported, except the sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, nineteenth, and twenty-first (some of the questions presented by this exception were abandoned, and the others argued under other exceptions), twenty-second and twenty-third. The complaint, in the first instance, alleged a cause of action under the State statute, but was amended during the trial by alleging that the defendant company and plaintiff’s intestate were engaged in interstate commerce, at time of the injury. First, second, and third exceptions. These exceptions will be considered together. They assign error on the part of his Honor, the presiding Judge, in ruling that testimony was admissible for the purpose of showing that the intestate *29 did not have any property at the time of his death other than his salary as an employee, and no insurance, with which to support his family, and that neither the widow nor the children had any property at the timé of his death. 1 The only ground of objection to the admissibility of the testimony was that it was irrelevant. The relevancy of the the testimony is left, in large measure, to the discretion of the presiding Judge, and his ruling will not be reversed.on appeal, unless it clearly appears that his discretion was erroneously exercised, to the prejudice of the appellant’s rights, which has not been made to appear in this case. 2 There is another reason why these exceptions can not be sustained. It was incumbent on the plaintiff to show that she and the children were dependent upon the ‘ intestate. “The damages recoverable are limited to such loss as results to them (the dependent relatives named in the statute) because they 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 thus sustained.” Gulf R. R. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785. The financial condition of the employee and the other members of his family tended to show whether they were dependent upon him or he dependent upon them for support. If the head of the family has only small means of support, this fact tends to increase the probability that the other members of the family.will be compelled to depend upon their own exertions for a livelihood. If the appellant’s attorneys had interposed the objection, to the admissibility of the testimony, that it could not be considered by the jury as an element of damage, and the presiding Judge had ruled that it was competent for such purpose, quite a different question would be presented from that now under consideration. *30 3 Fourth exception. It is immaterial, whether those who visited and conferred with the plaintiff, relative to her husband’s death, were authorized or not, for the reason that there was no testimony tending to show an offer of compromise. His Honor, the presiding Judge, ruled throughout the trial that such testimony was not competent, and none was introduced, contrary to his ruling- . . 4 Fifth exception. It was for the jury to determine whether the testimony was sufficient to show waiver of the rules. 5 Thirteenth exception. Wilfulness is not an element under the Federal statute, nor did his Honor, the presiding Judge, so rule. He charged the jury full}' that negligence was the basis of recovery under the Federal statute. The question whether there was any testimony tending to show negligence on the part of the appellant was properly submitted to the jury; and the question whether the death of plaintiff’s intestate was caused by negligence on his part was also properly submitted to the jury. 6 Fourteenth exception. In refusing the motion to direct a verdict in favor of the defendants, his Honor, the presiding Judge, said: “I can’t say there is not a scintilla of evidence to go to the jury.” This statement was not addressed to the jury, and it cannot be successfully contended that they were misled-. The words, “scintilla of evidence,” have been interpreted by this Court to mean such evidence as is sufficient to warrant a reasonable jury in rendering a verdict upon it. Howell v. Railway, 99 S. C. 417, 83 S. E. 639. In that case the Court said: ■ “We have frequently held that a nonsuit should be granted or the verdict directed, unless the evidence is sufficient to warrant a reasonable jury in basing a verdict upon it, and we have held, in cases too numerous to mention, that when the evidence is susceptible of only one reasonable inference, the Court must declare what that inference is, as matter of *31 law. Any other rule would substitute the decision of the trial Judge for that of the jury in the trial of issues of fact.” This case and the others from which we shall quote also show that the rule which prevails in the State Court is applicable when the action is brought under the Federal statute. “Nor do we agree that, in the administration of the Federal statute, the State Courts must apply a different rule of procedure from that which obtains in the administration of State laws. The Federal statute does not so require, and, in the absence of anything therein to the contrary, it will be presumed that Congress intended that it should be administered by the State Courts, as the laws of the State are therein administered.” Howell v. Railway, 99 S. C. 421, 83 S. E. 641. “The Federal Employers’ Diability Act is general in its terms, and makes no specific regulation as to the quantity, quality, and methods of proof of negligence, and, in the absence of any such regulation, will conform, as near as possible, to the State law in the manner and mode of trial and the rules of pleading, evidence, and law applicable thereto.” Bennett v. Railway, 98 S. C. 42, 79 S. E. 710; Keonnecke v. Railway, 101 S. C. 86, 85 S. E. 374. “There can, of course, be no doubt of the general principle, that matters respecting the remedy — such as the form of the action, sufficiency of pleadings, rules of evidence, and the statute of limitations' — depend upon the law of the place where the suit is brought. McNiel v. Holbrook, 12 Pet. 89, 9 D. Ed. 1011.” Central Vt. R. R. v. White, 238 U. S. 507. 35 Sup. Ct. 865, 59 L. Ed. 1433. The rule that prevails in the Federal Courts is as follows: “It is the settled rule of this Court that when the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the Court is not bound to submit the case to the jury, but may direct a verdict for the defendant. * * * And *32 it has recently been decided by the House of Lords, upon careful consideration of the'previous cases in England, that it is for the Judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether from those facts when submitted to them, negligence ought to be inferred.” Randall v. Railroad, 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003. It will thus be seen that the rule prevailing in this State and in the Federal Court is practically the same as stated by the case just cited. In the case under consideration, there was sufficient testimony for a reasonable jury to draw the inference of negligence on the part of the company. . 7 Even if it should be conceded, that his Honor, the presiding Judge, used the word “scintilla” in too restricted a sense, this would not constitute reversible error, for the 7 reason that it has been frequently held that a right to which a party is entitled, will not be defeated, on the ground that erroneous reasons are assigned in granting it. 8 Fifteenth exception. The case of Railroad v. . Partlow, 48 S. C. L. (14 Rich.) 237, shows that this exception cannnot be sustained. 9 Sixteenth and seventeenth exceptions. The conduct of the trial must be left, in large measure, to the discretion of the presiding Judge, and his rulings will not constitute reversible error, unless his discretion was erroneously exercised, which has not been made to appear. 10 Eighteenth exception. His Flonor, the presiding Judge, simply defined the duty of the company under the circum- • stances mentioned in the exception, but did not charge that a failure of duty in that respect would constitute negligence. Furthermore, it, has not been made to appear, even if there was error, that it was prejudicial to the rights of the apellant. *33 11 Twentieth exception. His Honor, the presiding Judge, could not charge the jury that certain facts would constitute negligence, without invading their province. Wo od v. Manufacturing Co., 66 S. C. 482, 45 S. E. 81; Weaver v. Railway, 76 S. C. 49, 56 S. E. 657; 121 Am. St. Rep. 934. Judgment affirmed. Footnotes [1] Footnote. — As to failure to call employee as witness raising presumption against party to action, see notes in 31 A. & E. Ann. Cas. 1914a, 917. As to comment by attorney on failure of party to testify, see notes in 16 A. & E. Ann. Cas. 309.