Opinion
12738
September 25, 1929.
Before RICE, J., Barnwell, June, 1927. Reversed and remanded.
Action by Mary Elizabeth Dantzler, as administratrix of the estate of Lawrence Keitt Dantzler, deceased, against the Southern Railway Company and another. Judgment for plaintiff, and defendants appeal.
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, recklessness and willfulness.
"`(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 proximate cause of the injuries resulting in the death of plaintiff's intestate was the intestate's own violation of a positive meet order, which he had in his possession, not fulfilled, superseded, or annulled.'
"(2) Because his Honor, the presiding Judge, erred, it is respectfully submitted, in allowing the witness, F.N. Rickenbaker, to testify over objection of the defendants, as follows:
"`Q. While Mr. Street and Mr. Hiott was there, did or not Mr. Dantzler say this in substance, or words to this effect: "I followed my orders, and the fellow up there dropped the clear board on me, and he has killed two of us, and the rest of us are going to die." * * * Did he make that statement? A. Yes, sir.'
"The error being that it was incompetent to introduce in evidence self-serving declarations made by the plaintiff's intestate in his own favor.
"(3) 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 cash 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.
"(4) Because his Honor, the presiding Judge, erred, it is respectfully submitted, in charging the jury as follows:
"`Now, it is the duty of the railroad company when they have an engineer in their engine, or when they employ anybody to work for them, to furnish a safe and suitable place for them to work. * * * It is undisputed that the control of the trains was under the officers of the railroad company other than Mr. Dantzler; so it was their duty to so direct those trains as to make it reasonably safe for him to operate his engine where he was ordered to go. There is not any question about that. * * * When he has been furnished a safe place in which to work he must use ordinary care in order to protect himself.' (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.
"(5) Because his Honor, the presiding Judge, erred, it is respectfully submitted, in charging the jury as follows:
"`Now, under the Federal Employers' Liability Act, it is a matter of compensation pure and simple, pecuniary compensation, and whatever service, other than money, which Mrs. Dantzler and her child may have suffered in consequence of his death — you can take that into consideration.' (Italics added.)
"This constituted error, in that it authorized and allowed the jury to speculate and award damages for the loss of services other than financial support, when there was neither allegation nor proof of the loss of such services.
"(6) 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.
"(7) Because his Honor, the presiding Judge, erred, it is respectfully submitted, in refusing the defendant's 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 drive his engine in 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 he was running his engine, 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 child, 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.'"
Messrs. Harley Blatt, and Frank G. Tompkins, for appellants, cite: 137 S.C. 47 not in harmony with law as laid down by U.S. Supreme Court. As to proximate cause: 22 R.C.L., 113; 126 S.C. 416; 243 Pac., 96; 115 S.C. 177; 122 S.C. 17; 240 U.S. 444; 230 Fed., 88; 235 Fed., 49; 242 U.S. 630; 263 U.S. 1; 216 Pac., 185; 263 U.S. 720; 266 U.S. 147; 20 S.E., 56; 267 U.S. 577; 125 Atl., 172; 207 N.W., 194; 73 L.Ed., 102. Competency of evidence: 29 S.C. 332. Damages: 241 U.S. 485; 114 S.E., 840; 119 S.E., 669; 275 U.S. 133; 149 S.C. 89; 246 U.S. 525; 275 U.S. 133. As to safe place to work: 120 S.E., 342; 275 U.S. 426; 276 U.S. 166; 233 U.S. 492. Compensation under Federal Employers' Liability Act: 227 U.S. 59. New trial within discretion of trial Judge: 120 S.C. 165.
Messrs. Wolfe Berry, W.C. Martin, R.C. Holman, and Brown Bush, for respondent, cite: Same argument as presented in case of Youngblood v. Southern Ry. Co. et al., reported in this volume.
September 25, 1929. The opinion of the Court was delivered by
This is a companion case of Youngblood v. Southern Railway Company and Southern Railway — Carolina Division, 149 S.E., 742, now in process of decision. The facts of the two cases are substantially the same. In the instant case, Dantzler, plaintiff's intestate, was employed by the defendants as a locomotive engineer, and on the morning of January 3, 1924, was operating, with Youngblood as conductor, one of defendants' trains, designated as extra 483, moving in a westerly direction over the main line from Branchville to Columbia. At the same time, another of defendants' trains, extra 723, was moving over the same line of road in an easterly direction from Columbia to Charleston. These two trains met in a head-on collision about four miles west of the City of Orangeburg, and Youngblood and Dantzler received fearful injuries, from which they both shortly afterwards died. Both cases were tried at the June, 1927, term of the Common Pleas Court for Barnwell County, and in the case at bar the jury returned a verdict of $33,875 for the plaintiff. Motions for a directed verdict and for a new trial were duly made by the defendants and refused by the Court.
The questions presented by the appeal in this case, aside from alleged error in the admission of certain testimony, are the same as those raised by the appeal in the Youngblood case, and the opinion in that case disposes of all such questions, except the appellants' contention that the Court's charge as to the master's duty in providing the servant a safe place of work imposed upon the defendants a greater duty than the law requires. As to that assignment of error, presented in this case by the fourth exception, the contention is without merit. When the whole of the Court's charge on this point is read together, as it should be, it is found to be free from the error complained of.
As to the assignment of error in the admission of testimony: Street, a witness for the defendants, testified that he himself was a patient at the hospital and occupied the same room with Dantzler on the day of his death; that Dantzler told him that he had a dead meet order with extra 723 at Orangeburg, but that he had overlooked it. Apparently, for the purpose of rebutting this declaration against interest, the plaintiff sought, by the following cross examination, to lay the foundation for the introduction of testimony, by way of contradiction of the witness, showing other declarations made by the plaintiff's intestate in his own favor:
"Q. On the 3d of January, 1924, did not Mr. Dantzler state this, or these words in substance, to you and in your presence, and in the presence of the coroner, Dr. Rickenbaker, and in the presence of Mr. J.D. Hiott — you know him? A. Yes, sir.
"Q. His wife was sick in the hospital at the time? A. I don't know.
"Q. In the presence of those gentlemen, did not Mr. Dantzler state in your presence these words in substance: `I followed my orders; the fellow dropped the clear board, or dropped the board, on me, and he has killed two of us, and the rest of us are going to die'? A. No, sir; he did not.
"Q. You deny that? A. Yes, sir; and I deny Mr. Hiott being in my room that day."
The plaintiff, in reply, asked her witness, Dr. Rickenbaker, the following question:
"Q. While Mr. Street and Mr. Hiott was there, did or not Mr. Dantzler say this in substance, or words to this effect: `I followed my orders and the fellow up there dropped the clear board on me, and he has killed two of us, and the rest of us are going to die'?"
Counsel for defendants objected, but the Court allowed the witness to answer, and he testified that Dantzler made such statements, and that Street was in the room at the time. The Court should have sustained the appellants' objection. "The general rule upon this subject is that, while it is competent to introduce declarations of a party against his interests, it is not competent to introduce his declarations in his own favor, unless they were made in, and constituted a part of, the conversation brought out by the other side." Williams v. Mower, 29 S.C. 332, 7 S.E., 505, 507. See, also, Wilson v. Gordon, 73 S.C. 155, 53 S.E., 79; Edwards v. Ford, 2 Bailey, 461; Darby v. Rice, 2 Nott McC., 596.
The testimony does not show, or even tend to show, that the self-serving declarations testified to by Rickenbaker were a part of any conversation in which Dantzler made the alleged declaration against his interest, testified to by Street. In fact, Rickenbaker testified that Dantzler made no such statement in his presence. Nor is it shown that the declarations made by plaintiff's intestate in his favor were a part of any other conversation brought out by the defendants. As these self-serving declarations, tested by the rule in the Williams case, were inadmissible, they could not be made competent by way of an attempted contradiction or in reply.
Judgment reversed, and case remanded for a new trial.
MESSRS. JUSTICES BLEASE and CARTER, and MR. ASSOCIATE JUSTICE GRAYDON concur.
MR. JUSTICE COTHRAN dissents in part.
MR. CHIEF JUSTICE WATTS not participating.
I concur in the disposition made by Mr. Justice Stabler of exceptions 2, 3, 4, 5, 6, and 7. I do not concur in his disposition of exception 1. On the contrary, for the reasons stated in my concurring and dissenting opinion in the companion case of Youngblood, I think that the motion of the defendants for a directed verdict in their favor should have been granted.
My opinion, therefore, is that the judgment of the Circuit Court should be reversed, and the case remanded for judgment in favor of the defendants, under Rule 27.