Turbyfill v. Atlanta & Charlotte Air Line Ry.

1. Evidence — Railroad Crossings. — Admission of opinions of witnesses as to danger of a railroad crossing was harmless here both as to statutory cause of action and that at common law. 2. Railroads — Crossing Signals. — The portion of the charge here complained of as instructing the jury the defendant was liable if its failure to give the statutory crossing signals contributed to the injury, held, when construed with other portions of the charge, not to be harmful, but to mean there could be no recovery unless such acts were a direct and proximate cause of the injury. 3. Charge — Railroad Crossing. — The instruction here complained of in reference to the purpose of giving the statutory signals on approaching a crossing, especially where “as it is alleged in this case it cannot be seen on account of a curve or other obstruction,” held not to be a statement of a material fact in the case, but to have been used by way of illustration. 4. Ibid. — Ibid.—Look and Listen. — Instructions requested as to result of failure of a traveler to stop, look and listen, and to take precautions to protect himself from a train he knows or could have known was approaching, although the statutory signals were not given, held properly refused as they would have intimated to the jury the inference to be drawn from the facts therein stated in detail. 5. Ibid. — Gross Negligence. — Refusal of requests defining gross negligence as want of slight care, and effect of want of slight care in ascertaining- if a train is approaching a crossing, held not error, because substantially covered in other requests. 6. Ibid. — Damages.—Request to instruct jury that parent cannot recover for death of child living apart from him and not contributing to his support, is on the facts and covered in previous instruction. Trvmmier v. Ry., 81 S. C., 213, affirmed. 7. Damages. — Age of the parent is not an element to be considered by the jury in estimating the damages to the parent from the death of the child. 8. Exceptions not argued are not considered.

Before DeVorE, J., Spartanburg, October term, 1909. Action by I. M. Turbyfill, as administrator of Belinda R. Hand, against Atlanta and Charlotte Air Line Railway Company. From judgment for plaintiff, the defendant appealed- on the grounds that his Honor erred: 1. “In allowing the witness, I. M. Turbyfill, to be asked the following questions: Q. ‘Was that a dangerous crossing or not?’ Q. ‘Did you consider it so?’ And in permitting him against the objection of the defendant, to answer the same. And- also in permitting the following questions to lie asked the witness, Parker Grier: Q. ‘Was that a dangerous crossing?’ Q. ‘Did you consider that a dangerous crossing?’ And in1 permitting the witness1 to answer the same against the objection of the defendant. And also in permitting the following question1 to be asked the witness, O. N. Moore: Q. ‘State whether or not that is a dangerous crossing.’ And in allowing the witness to answer the question against the objection of defendant. The error being, as it is respectfully submitted, that this was permitting these witnesses to give their opinion on one of the material issues in the case. 2. “In charging the plaintiff’s fifth -request, to wit: ‘If the jury find that the deceased» was killed at the time and place.alleged because of neglect to give the statutory signals, and! such neglect contributed to her death, then the defendant is responsible for her death», and must answer in damages therefor, unless they further find that the deceased» was guilty of gross or wilful» negligence, or was violating law, and that such» gross or wilful negligence or violation of the law was the proximate cause of her death.’ The error being, »as it is respectfully submitted: (a) That by this charge his» Honor instructed the jury substantially that if the deceased was killed at the place alleged because of the neglect of the defendant to give statutory signals, and that such neglect contributed to her death, that the 'defendant would be liable therefor, thereby leaving the jury to believe that if such neglect contributed in any manner to her death the defendant would be liable; whereas, it is respectfully submitted, that his Honor should have charged that before the 'defendant would be liable it must be shown that the neglect to give -the statutory signals contributed as a proximate cause to her death, (b) Because his Honor further erred in charging this request because, it is respectfully submitted, that when his Honor charged the jury that the defendant would be liable if the failure to give the statutory signals contributed- to the 'death of the intestate, unless the jury should further find that the deceased was guilty of gross or wilful- negligence, or was violating the law, and that such» gross or wilful negligence o»r violation of t'he law •was the proximate cause of her death, he, in substance, charged and instructed them that gross or wilful negligence, or violation of law on the part of the plaintiff before it would exonerate the defendant must be ‘the proximate cause of her death;’ thus substantiality charging them that this gross or wilful negligence or violation' of law on the- part »of the deceased must be 'the sole oause.of 'her death; whereas, it is respectfully submitted, that even if the defendant was guilty of violating the statute, and even- if such violation did contribute as ‘a proximate cause’ to her death, yet, that the defendant would not be liable if the deceased was guilty of gross or wilful negligence which contributed as ‘a proximate’ cause to her death. 3. “Because, as it is respectfully submitted, his Honor erred in charging the plaintiff’s twelfth request, to wit: T charge you further that the Supreme Court of our State has said, “one of the purposes of requiring the signals to be continued is to give notice of the location of the train and the rapidity of its approach, especially when, as it is alleged in this case, it cannot be seen on account of a curve or other obstructions.” ’ The error being, as it is respectfully submitted, that by this charge his Honor charged upon the facts, contrary to the provisions of the Constitution of 1895, and intimated to the jury that the train could not be seen by the deceased on account of a curve or other obstruction. Whereas, it is respectfully submitted, this was one of the material facts in the case to be determined by the jury from the evidence introduced, and his Honor erred in so charging. : 4. “Because, it is respectfully submitted, his Honor erred in refusing to charge the defendant’s third request, to wit: 3. ‘The object of the law in requiring a railroad company to ring the bell or sound the whistle of an engine for five hundred yards continuously before reaching a crossing is to give notice of the approach of the engine, its location, and the rapidity of its approach, to persons expecting to cross the track at the crossing, but if a person who is expecting to cross the track at such crossing knows that the train is approáchirig, knows its location and the rapidity of its approach, by any other means, then the object of the statute has been accomplished; and if a person, with the knowledge that a train is approaching within five hundred yards, and knows its location and the rapidity of its approach, does enter on the track without exercising ordinary care and caution and is injured by the collision with the train, and if it appears that the failure to exercise ordinary care and caution contributed to the injury, it cannot be said that the failure to ring the bell or sound the whistle caused the injury.’ The 'errors being, as it is respectfully submitted: (a) That this was a sound proposition of law applicable to the facts in the case, and his Honor erred1 in not submitting the question to the jury, and in allowing them to determine whether if a party intending to cross a railway track knew of the approach of the train, its location and the rapidity of its approach by means other than the giving of the signals required by the statute was required to exercise ordinary care and caution before entering on the track, and further, that his Honor, by refusing to charge this request, took from the jury and prevented them from.' determining whether a person intending to cross the track, and who knew of the approach of its engine, its'location, and the rapidity of its approach, by means other than by the giving of the signals required by the statute, would be guilty of such contributory negligence as would defeat a recovery. It being respectfully submitted that when a person does know of the approach of an engine, its location, and the rapidity of its approach either by sight or hearing, or by any other means other than the giving of the signals required by the statute, and that notwithstanding such knowledge the person does enter upon the track and is injured it then becomes a question for the jury to determine whether or not such person failed to exercise ordinary care and caution, and whether-such person was guilty of such contributory negligence as would exonerate the railroad company. (b) That his Honor overlooked the distinction existing between the common law- and the statute in actions of this kind and limited the jury to the consideration' of the defense under the statute. 5. “Because his Honor erred in failing to charge defendant’s fourth request, to wit: 4. Tf a person who expects to cross a railway track at a crossing knows of the approach of the train, that it is within five 'hundred' yards of such crossing, knows its locality, and the rapidity of its approach, and such knowledge is- derived either from the ringing of the' bell or the sounding of the whistle continuously for five hundred yards- before the train reaches such crossing, or because the person saw and heard -the train for this distance, then it is the duty of such person to 'exercise ordinary care and caution- to avoid coming -into collision with the train, and if he fails to exercise ordinary care and caution, and such- failure contributes -or aids or helps in- producing the injury, that is, if it combines -and -concurs with1 the negligence of the railroad company in causing -an injury, there can be no recovery.’ The error being, as it is respectfully submitted, that by refusing this request his Honor took from the jury the question of the contributory negligence of the deceased and her failure to exercise ordinary care and caution, provided the jury found fr-o-m the facts that the deceased had knowledge of the approach of the engine within five hundred yards, its location-, and the rapidity of its approach; whereas, it is respectfully submitted, that this request was -a sound proposition of law, applicable to the facts of the case, and should have been submitted to the jury; and further, as it is respectfully submitted, It is the duty of a person who expects to cross a railway track and who sees or knows that a train is approaching within five hundred yards', and who knows the location of the engine and the rapidity of its approach, to exercise ordinary care and caution to avoid coming into collision with the train, and that the failure of a person so situated -and under such circumstances to exercise ordinary care and caution- is contributory negligence, and if such' person does fail under such circumstances to exercise ordinary care and caution, and such failure does combine and concur with the negligence of the railroad company as a proximate cause in bringing about the injury, there should be no recovery, and his Honor erred1 in not so instructing the jury. 6. “Because his Honor erred, as it is respectfully submitted, in refusing to charge defendant’s sixth request, to wit: 6. ‘If a person carelessly leaves a safe place and carelessly goes into a place of danger when by the exercise of slight care such person could and would know that it was dangerous, then such person may be said to have been guilty of gross negligence, because the failure to exercise slight care is gross negligence.’ It being respectfully submitted that this request embodied a sound proposition of law applicable to the facts in this case and his Honor erred in not so charging the jury. It being respectfully submitted that this request embodies a correct definition of what is gross negligence and this being one of the material defenses of the defendant, his Honor, we respectfully submit, erred in not so defining gross negligence and in refusing to charge this request. 7. “Because his Honor erred, as it is respectfully submitted, in refusing to charge defendant’s fourteenth request, to wit: 14. ‘The failure to stop, look and listen before entering upon a highway crossing, where it contributes as a proximate cause to an injury, is contributory negligence.’ The error being, as it is respectfully submitted, that under the decisions of this Court where the failure to stop, look and listen before entering on a railroad track contributes as a proximate cause to the injury, such failure is contributory negligence, and his Honor erred in not so instructing and charging the jury, and that by so refusing his Honor took from the jury the question whether there was a failure to stop, look and listen on the part of the deceased, and whether such failure, if it existed, contributed as a proximate cause to her injury, thereby leaving the jury to believe that even though the deceased did fail to stop, look and listen before entering upon the highway crossing, and even though such failure contributed as a proximate cause to her injury, that still she would not be guilty of contributory negligence. 8. “Because his Honor erred ini refusing to charge defendant’s fifteenth request: 15. ‘If a person is injured by collision with a train at a highway crossing, and' if the evidence shows that such person failed' to stop, look and listen before going on the track, and that if he had stopped, looked and ‘listened he would have known that he could not cross without great danger of being injured, then the failure to stop, look and listen, if they existed, may be said to have contributed as a proximate cause to the injury.’ It being respectfully submitted that this request embodied a sound proposition of law applicable to the facts of this case and should have been charged; and further, that by such refusal his Honor, as it is respectfully submitted, erred, in that by refusing this request he took from the jury the question whether the failure on the part of the deceased to stop, look and listen, if such existed, before going on the track was contributory negligence on her part, such as would defeat a recovery even though she might have known, or did know, that she could not cross without great danger of being injured. Whereas* it is respectfully submitted, that in any case brought to recover damages by collision with an engine at a highway crossing, if the evidence shows that there was a failure to stop, look and listen before going on the track, and that if such person had stopped, looked and listened he would know that he could not cross without great danger of being injured, then the failure to stop, look and listen, if they existed, is contributory negligence and the jury should have been so instructed. 9. “Because, as it is respectfully submitted, his Honor erred in refusing to charge defendant’s sixteentti request, to wit: 16. ‘If the evidence shows that a person intending to cross a railway track could, by the exercise of slight care, have seen and known that it was very dangerous to attempt to cross such track, then if the evidence shows that such person failed to exercise slight care, and that this failure contributed as a proximate cause to an injury by collision with a train, there can be no recovery even though the signals were not given as the statute required.’ The error being, as it is respectfully submitted, that this was a sound-proposition of law applicable to this case -and should have been- charged. It being respectfully submitted that it is the duty of a person intending to cross a railway track to at least exercise slight care to know whether it is veiy dangerous to attempt to -cross such track, and if in any case the evidence does show that the person injured did fail to exercise slight care, and that such failure -did contribute as a proximate cause to an injury by collision with a train, then-there can be no recovery even though the company did fail to give the signals as -the statute required, and his Honor, as it is respectfully submitted, erred in not so instructing the jury. 10. “Because, as it is respectfully submitted, his Honor erred in refusing to charge defendant’s third request on the measure of damages, to wit: 3. ‘In- this case the evidence shows that the deceased was of age and that she was living apart from the parent, and as the evidence fails to show that the deceased contributed anything, either in money or services, for the support or aid of the parent, no damages can- be allowed on this account.’ The error being, as it is respectfully submitted, that as there was no evidence in this case showing, or tending to show, that the mother, for whose benefit this action is brought, received anything from the deceased either in money or by way of service for her support or aid, and the evidence further -showing, beyond contradiction, that the mother was living apart from the deceased, his Honor erred in refusing this request, thereby permitting the jury in their estimate of damages to include the loss of money and services of the deceased. 11. “Because his Honor, as it is respectfully submitted, refused to charge the defendant’s sixth request, on the question of damages, to wit: 6. ‘The action in this case is brought for the benefit of the parent, and' in considering what amount of damages should be allowed — if the jury determine that any should be allowed at all — the jury -should take into consideration) the age of- the parent, and as the parent could not receive any aid, or support or assistance or comfort beyond her life, the- jury should not render a verdict for an amount which would extend beyond the life of such parent, that is to -say, they should not allow -damages for a length- of time beyond which- they think the parent might reasonably be expected to live.’ The error being, as it is respectfully submitted, that this action being brought for the benefit of a parent over sixty years- of age, and the statute providing that the jury can only give such damages as are proportionate to the injury sustained by the party for whose benefit the action- is brought, his Honor should have instructed the jury that- in estimating the damages done the beneficiary — the mother in this case — they should not allow any damages for a time beyond which such beneficiary might reasonably be expected to live, and’ that by refusing this request his Honor permitted the jury to give damages for an unlimited time; whereas, it is respectfully submitted, that the injury or damages done the beneficiary by the wrongful- death of the deceased must of necessity cease at the death of the beneficiary and1 th-e jury should have been instructed as the defendant requested. 12. “Because, it is respectfully -submitted, his Honor erred in not charging the defendant’s first request as to the contributory negligence of the deceased, without modification to wit: 1. ‘It is the duty of a person who is approaching a railroad crossing, known to be dangerous, to be on the alert and to be vigilant to avoid being injured-;’ and in modifying the same by inserting the words ‘if he knows it.’ The error being, as it is respectfully submitted: (a) That by this modification his Honor led the jury to believe'that it was not the duty of a person attempting to cross a railroad track at a highway crossing to be on the alert and to be vigilant to avoid being injured, unless such person had actual knowledge that such crossing was dangerous. It being respectfully submitted that it is the duty of a person who is attempting to cross a railroad track, at any time or place, to be on the alert and to be vigilant to avoid being injured, and his Honor erred in not charging this request as it was written, (b) That by this modification his Honor overlooked the distinction as to the rights and liabilities of the parties under the statute and under the common law. 13. “Because, as it is respectfully submitted, his Honor erred in modifying the defendant’s second request as to the contributory negligence of the deceased, to wit: 2. ‘A person who is approaching a railroad crossing known to be dangerous — if the exercise of due care and caution demands it — should' be on the alert and should stop, look and listen before entering on the track and, if such person does enter on the track without exercising such care as ordinary caution, under the circumstances, would demand, and his failure to exercise such care combines and concurs with the negligence of the railroad' company as a proximate cause in producing the injury, then the jury would have a right to find that such person was guilty of contributory negligence.’ And in modifying the same by inserting the words, 'and knows it.’ The error being, as it is respectfully submitted, that his Honor, by this modification, led the jury to believe that a person attempting to cross a railroad1 trade at a highway crossing was not required to stop, look and listen, if due care and caution 'demanded it, unless such person had actual knowledge that such crossing was dangerous. Whereas, it is respectfully submitted, it is the duty of a person at all times in attempting to cross a railroad1 track, if the exercise of due care and' caution demands it, to be on the alert and to stop, look and listen before entering on the track, even though such person may not have actual knowledge of -the fact that such crossing is dangerous, and his Honor should: have charged the request as submitted without modification. 14. “Because his Honor erred in charging the plaintiff’s eleventh request to charge, to wit: 11. T charge you that if you should find that the deceased saw.and heard the train, or should, by the exercise of care, have seen and heard it, nevertheless this would not deprive the plaintiff of the right to recover, and would not relieve the defendant from the. obligations and penalties of the law if he failed to give the signals as required by the statute, unless you further find that the deceased was guil'ty of gross or wilful negligence, or was at the time violating the law.’ The error being, as it is respectfully submitted: (a) That by this charge his Honor instructed the jury that if the defendant failed to give the signals and notwithstanding this, yet if the deceased saw and heard- the train, the plaintiff in1 this action could recover unless the deceased was guilty of gross or wilful negligence, or was at the time violating the law; whereas, it is respectfully submitted, that if the deceased saw and heard the train it was not necessary for the defendant to show that she was guilty of gross or wilful negligence or was violating the law in order to prevent a recovery, (b) That by this charge his Honor overlooked the distinction between the right of the plaintiff to recover under the statute and under the common law, thereby limiting the scope of the defense to the evidence required under the statute and preventing the jury from considering the evidence as to the contributory negligence of the deceased under the common law.” cite: Opinion as to danger of crossing: 59 S. C., 811; 81 S'. C., 197; 17 Cyc., 25; 31 C. C. A., 515; 74 S. C., 235. Negligence must be proximate cause of injury: 59 S. C., 322. Charge on disputed questions of fact: 75 S. C., 309; 71 S. C., 62. Signals only required to give notice: 34 S. C., 451; 84 S. C., 137. Knowledge from other sources of approach of train relieves of giving signals: 34 S. C., 451; 63 S. C., 271. Look and listen: 72 S. C., 392; 84 S. C., 1, 138. Parent should not recover if child does not contribute to his support: 76 S. C., 183. Expectancy of parent should be considered: 14 Am. St. R., 72; 125 Am. St. R., 882. cite: Opinions based on reasons are competent: 82 S. C., 75. Contributed to means as a direct and proximate cause: 58 S. C., 228; 73 S. C., 256; 41 S. C., 452. Requests as to failure to exercise slight care properly refused: Turbyfill v. Ry.} 83 S. C.; 47 S. C., 375; 72 S. C., 392; 54 S. C., 509; 84 S. C., 573; Mills v. Ry., 85 S. C. Loss to parent is not alone pecuniary: 29 S. C., 320; 81 S. C., 213.