Youngblood v. Southern Ry. Co.

149 S.E. 742, 152 S.C. 265, 77 A.L.R. 1419, 1929 S.C. LEXIS 225

• Court: Supreme Court of South Carolina
• Decided: September 25, 1929
• Docket: 12737
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Stabler.

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 Orangebufg 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 U. S. C. A., §§ 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 new trial. 137 S. C., 47, 134 S. E., 660.

The case was tried at the June, 1927, term of the Court, before Judge Rice and a jury. The defendants again made a motion for a directed verdict, which was refused, and the jury found for the plaintiff $35,000.00. A motion for a new trial was also refused. The defendants appeal upon six exceptions, which will be disposed of in order.

The first exception imputes error to the trial Judge in refusing defendants’ motion for a directed verdict, made upon the grounds:

“(a) Tliat 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 fullfilled, superseded,'or annulled.”

The testimony at the second trial was practically the same as at the first trial, though slightly stronger for the plaintiff. On the first appeal we gave very careful consideration to the questions presented, and held that there was testimony tending to show negligence on the part of defendants, and that, in spite of any contributory negligence on the part of Youngblood, the whole matter should have been submitted to the jury for determination. We see no reason to change the views we then held, and this exception is overruled.

The appellants, by their second exception, assign error to the trial Judge in his instructions as to the measure of damages, in that he failed 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.” On this point the trial Judge charged the requests of the plaintiff, the pertinent portions being as follows:

“(15) If the jury conclude that, under the law as charged by the Court and according to the evidence in the case, the plaintiff is entitled to recover a verdict then such verdict should cover the pecuniary, or monetary, loss sustained by the beneficiaries named in the act by reason of the alleged wrongful death of the intestate; but no damages, other than pecuniary, or monetary, damages or loss, can be considered by the jury in making up the amount of the verdict, if any is to be awarded.”

“(16) In determining the amount of damages, if any are to be awarded to the plaintiff, the jury are to consider only the pecuniary loss or damage, if any, flowing to the dependent beneficiaries named in the act and in the complaint. * * * ”

And in connection with the mortuary tables: “In other words, you will ask: How long would the intestate probably have lived in the light of all of the evidence'in the case?”

There is no instruction in totidem verbis as to “present value,” and the appellants contend that what the trial Judge actually charged “cannot possibly be construed as submitting to the jury the present value of damages,” but, on the contrary, “authorized the jury to award the present recovery of the total future benefits without making any deduction or discount to ascertain their present worth.”

The question of the proper measure of damages in cases arising under the Federal Employers’ Liability Act must be determined, of course, in accordance with the principles of law announced by the United States Supreme Court. In C. & O. R. Co. v. Kelly, 241 U. S., 485, 36 S. Ct., 630, 631, 60 L. Ed., 1117, L. R. A., 1917-F, 367, that Court stated the rule as follows: “The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased. * * * So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits withoút taking account of the earning power of the money that is presently to be awarded. It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future.”

In that case the trial Court charged that “if the jury find for the plaintiff, they will find a gross sum for the plaintiff against the defendant which must not exceed the probable earnings of Matt Kelly had he lived. The gross sum to be found for plaintiff, if the jury find for the plaintiff, must be the aggregate of the sums which the jury may find from the evidence and fix as the pecuniary loss above' described, which each dependent member of Matt Kelly’s family may have sustained by his death”- — and refused defendant’s requested instruction that the jury should “fix the damages at that sum which represents the present cash value of the reasonable expectation of pecuniary advantage,” etc. The charge was held error, and not a correct statement of the proper measure of damages.

In L. & N. R. Co. v. Holloway, 246 U. S., 525, 38 S. Ct., 379, 380, 62 L. Ed., 867, the trial Judge charged the jury: “The measure of recovery if you find for the plaintiff, being such an amount in damages as will fairly and reasonably compensate the widow of the said John G. Holloway, deceased, for the loss of pecuniary benefits she might reasonably have received if the deceased had not been killed, not exceeding the amount claimed, to wit, $50,000.00.” The railroad company appealed and the United States Supreme Court, through Mr. Justice Brandéis, said:

“The instruction given, though general, was correct. It declared that the plaintiff was entitled to recover 'such an amount in damages as will fairly and reasonably compensate’ the widow 'for the loss of pecuniary benefits she might reasonably have received’ but for her husband’s death. This ruling did not imply that the verdict should be for the aggregate o-f the several benefits payable at different times, without making any allowance for the fact that the whole amount of the verdict would be presently paid at one time. The instruction bore rather an implication to the contrary; for the sum was expressly stated to be that which -would ‘compensate.’ The language used was similar to that in which this Court has since expressed, in Chesapeake & O. R. Co. v. Kelly, supra, 241 U. S., 489, 36 S. Ct., 630, 60 L. Ed., 1117, L. R. A., 1917-F, 367, the measure of damages which should be applied” — -adding: “The company had of course, the right to require that this general instruction be supplemented by another calling attention to the fact that, in estimating what amount would compensate the widow, future benefits 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 plaintiff’s fourth request as follows: “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 [in damages] 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”- — saying in the same connection: “I charge you that, and, to make it plainer that is the rule laid down in a number of cases, some say the measure of damages is the commercial value of the deceased to his widow and children; what was he worth to them?” He refused to- charge the appellant’s request that “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,” etc.

Rlpon appeal this Court held that the defendant was entitled, under the Holloway case, to have its request charged, but that the error was harmless, since the charge taken as a whole was a correct statement of the governing legal prin ciples. The Supreme Court of the United States reversed the decision of this Court in that case (278 U. S., 565, 49 S. Ct., 35, 73 L. Ed., —), on the authority, among others, of G., C. & S. F. Railway Co. v. Mosler, 275 U. S., 133, 48 S. Ct., 49, 50, 72 L. Ed., 200, in which that Court, after restraining the rule laid down in the Kelly case, said: “The interpretation approved.by us has become an integral part of the Statute. It should be accepted and followed.”

It is evident that the disapproval of the charge in the Tyner case on the measure of damages was predicated, not upon any incorrectness of the charge actually made, but upon the refusal to charge the law more specifically as requested by the defendant. Holloway case, supra.

In W. & A. R. R. v. Hughes, 37 Ga. App., 771, 142 S. E., 185, 188, “the Court charged the jury, with reference to reducing to a present cash valuation a sum representing damages for loss of future benefits, that in making such reduction the jury should make an ‘adequate allowance, according to the circumstances for the earning power of money,’ and that it should ‘be reduced to its present cash value upon a rate of interest which you fix as reasonable, just, and right under all the circumstances.’ ” It was held that “the charge stated a correct rule of law, and, in the absence of a special request for a more specific charge, a failure of the Court to charge that the jury, in making such reduction, should take into consideration the earning power of money when invested with ordinary care, was not error.”

On appeal the United States Supreme Court said (278 U. S., 496, 49 S. Ct., 231, 232, 73 L. Ed., —) : “The railroad argues also that the charge failed to make it clear to the jury that, in compriting the damages recoverable for the operation of future benefits, adequate allowance must be made, according to circumstances, for the earning power of money, that the verdict should be for the present value of the anticipated benefits, and that the legal rate of interest is not necessarily the rate to be applied in making the computation. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S., 485, 491, 36 S. Ct., 630, 60 L. Ed., 1117 [L. R. A., 1917-F, 367]; Gulf, Colorado & Santa Fe Ry. Co. v. Mosler, 275 U. S., 133, 48 S. Ct., 49, 72 L. Ed., 200. There is no room for a contention that the charge failed to state correctly the applicable rule. If more detailed instruction was desired, it was incumbent upon the railroad to make a request therefor. Louisville & Nashville R. Co. v. Holloway, 246 U. S., 525, 38 S. Ct., 379, 62 L. Ed., 867. It did not do so.”

We deduce from these authorities that, as the present value rule laid down by the United States Supreme Court as to the measure of damages is “an integral part of the Statute,” it is incumbent on the trial Judge to instruct the jury as to that rule, whether he be so requested or not; but, when such instruction is correct as a general statement of the rule, a party desiring more detailed instruction must make request therefor. In the case at bar there was no request for a charge as to the present value rule; but, as there was no charge at all, general or otherwise, stating the rule — the charge given not being susceptible of such construction — we think there was error. This exception-is sustained.

By their third exception appellants complain of the following instructions to the jury:. “And when he [Young-blood] was directed by the proper officers to get on board that engine, and to 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. * * * The master must furnish him (the servant) with a safe appliance to work with, and a safe place in which to work.”

The objection is that the charge made the master’s duty with reference to- the safety ,of the place of work an absolute one, and took no account of the rule of ordinary care or reasonable diligence. In cases arising under the laws of. this State the master’s duty is governed by the principles of the common law as interpreted by this Court, and the rule is that the master must furnish the servant a reasonably safe place to work in and reasonably safe tools and appliances to work with. Cases brought under the Federal Employers’ Liability Act, however, are governed by that Act and the principles of the common law as applied in the Federal Courts. M. P. Railroad Co. v. Aeby, 275 U. S., 426, 48 S. Ct., 177, 179, 72 L. Ed., 351; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U. S., 166, 48 S. Ct., 215, 217, 72 L. Ed., 513. We turn, therefore, to the decisions of the United States Supreme Court.

In S. A. L. Railway v. Horton, 233 U. S., 492, 34 S. Ct., 635, 639, 58 L. Ed., 1062, L. R. A., 1915-C, 1, Ann. Cas., 1915-B, 475, that. Court stated that under the Act the carrier’s liability is conditioned upon negligence, and that under the common law “an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen.” The instructions given by the trial Judge were held erroneous, in that they “imposed upon the employer an absolute responsibility for the safe condition of the appliances of the work, instead of limiting the responsibility to the exercise of reasonable care.”

In the Aeby case, supra, the Court said: “Its [the railroad company’s] duty in respect of the platform did not make petitioner an insurer of respondent’s safety; there was no guaranty that the place would be absolutely safe. The measure of duty in such cases is reasonable care, having regard to the circumstances.”

In the Allen case, supra, the Court made a somewhat different statement of the rule from that made in the Horton case, referring to it as “the rule of law which holds the em ployer to ordinary care to provide his employees a reasonably safe place in which to work.” It appears that, under the principles of law announced by the United States Supreme Court as governing in cases of this kind, the charge in the case at bar imposed on the defendants a greater duty than that required by law and hence was error. This exception is sustained.

The fourth exception imputes error to the trial Judge in charging the plaintiff’s 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.” There was neither allegation nor evidence to which this instruction was applicable; it was therefore improper.

The trial Judge charged the defendants’ second request as follows: “If you find from the testimony that the injuries resulting in the death of the plaintiff’s intestate were caused solely by his own act, whether it was done by him negligently or recklessly, then I charge you that the plaintiff cannot recover and your verdict should be for the defendants.” Immediately afterwards he said to the jury: “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.”

By their fifth exception the appellants charge error in the additional remarks made by the Judge, on the ground that they were equivalent to instructing the jury that, in order for the defendants to' escape liability on account of Youngblood’s violation of an order, such violation must have been conscious and willful, whereas, if his death was due solely to his own violation of an order, it could make no difference, so far as the liability of the defendants is concerned, whether such violation was due to willfulness, or a lapse of memory, or any other cause on his part.

The jury could not possibly have been misled by the Judge’s remarks, since he told them in the same connection: “Don’t understand that I am telling you that. I am telling you the law, and telling you what they say. That is' a question for’ you. As I have already charged you, if you find that he came to his death by reason of his sole negligence, then you cannot find for the plaintiff.” Any negligent violation of the order was thus placed on the same basis as any conscious or willful violation, in so far as the defendants’ liability was concerned. This exception is overruled.

Under the view we take of the case it becomes unnecessary to consider the sixth exception.

The judgment of the Circuit Court is reversed, and the case remanded for a new trial.

Messrs. Justices BeEase and Carter and Associate Justice Graydon concur. Mr. Ci-iiEE Justice Watts did not participate.