| S.C. | Apr 14, 1884
Lead Opinion
The opinion of the court was delivered by
This is an action brought by the plaintiff, appellant, as administrator of his son, Richard J. Davis, deceased, against the respondent, to recover damages for causing from negligence the death of the said Richard, who at the time of his death was in the employment of the respondent in the capacity of road hand on a freight train. At the close of plaintiff’s testimony, on motion of the respondent, a non-suit was ordered.
The plaintiff’s action is based upon an alleged beneficial interest in the life of the deceased, and negligence on the part of the company, the negligence consisting'of an alleged failure on the part of the company to furnish the deceased with a safe lantern while in the discharge of a duty imposed upon him to ride on top of the conductor’s cab attached to the train, running in the night time from Columbia to Greenville, and in negligently • erecting and permitting a pump or tank to remain closer to the
This sad event happened in this way: While the deceased was on top of the cab in the discharge of his duty, the bottom of the lantern dropped out and the light was extinguished, which made it necessary for the deceased to descend to the cab for another, and on his return to his post, by means of a ladder attached to the outside of the cab, the only means of reaching the top again, just at that moment the train passed the tank, the timbers of which struck the deceased and knocked him from the train, causing his death. The negligence relied on as the foundation for the action was in reference to the lantern and the tank. The non-suit was granted, in part at least, because in the opinion of the Circuit judge the plaintiff failed to introduce testimony as to those matters sufficient to entitle him to go to the jury.
The law as to non-suits in this state, settled and repeated in a number of cases from Bay’s Reports down to the present time, is that an entire failure of evidence as to one or all of the material facts upon which the action depends, will alone authorize the granting of such motion. The plaintiff is required to state in his complaint the facts which constitute his cause of action. As a general rule it is not difficult to understand what the facts are, and when properly stated in the complaint and denied in the answer, they make the issue between the parties litigant, which is to be tried by the jury upon the testimony offered; and under our system, after the case reaches the jury, they are the sole judges whether these facts at issue have been proved. It is their duty to hear the testimony submitted, to weigh it, and to determine its force and effect.
In every case, however, a question may'arise whether any pertinent testimony has been offered by the plaintiff to sustain his complaint. This, if it arises, is always a preliminary question, and before the case goes to the jury, and it i's a question of law to be decided by the judge. If, in such case, no testimony directed to the facts at issue has been introduced (and this is for the judge to determine), a non-suit is proper. If, however, any testimony has been offered, whether in the estimation of the judge
There are some loose expressions in some of the cases to the effect that insufficient testimony will sustain a non-suit. These expressions should not be understood, however, as giving power to the trial judges to detei’mine the quantum of testimony sufficient to prove an alleged fact, or to decide as to the truth, force, or effect of such testimony; but they should be interpreted in the sense rather of pertinency or relevancy. In fine, the rule is, that where there is any competent, pertinent, and relevant testimony offered to the facts in dispute, the case passes into the hands of the jury and beyond the judge; but where no such testimony is offered, it is the province and duty of the judge to non-suit. Thus understood, the rule is clear and it harmonizes the respec-' tive functions of the court and the jury, making our judicial system the complete and perfect system that it is; leaving the law to those who have made it a special study, and therefore better able to decide it — the judges — and the facts to those who, from their practical common sense, are perhaps best able to solve them — the jury.
The subject of non-suits has been discussed in this state in the cases here cited, and the rule established is as above stated, which may be succinctly expressed thus : In the absence' of all testimony in support of the material allegations in the complaint, which is a question for the judge, a non-suit is proper; but where there is any testimony directed to said allegations, the weight, truth, and sufficiency of which are to be determined, the case must go to the jury. Brown v. Frost, 2 Bay, 126; Hopkins v. DeGraffenreid, Ibid, 187, 441; Singleton v. Hilliard & Brooks, 1 Strob., 218; Graff & Co. v. Caldwell, 7 Rich., 138; O'Neall
Now apply these principles to the case under consideration. The action is properly brought under the act of 1859 (Gren. Stat., §§ 2183-84), under which the plaintiff is entitled to recover “such damages as the jury may think proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit it is brought.” Admitting that the term injury in this act refers alone to pecuniary loss, and not to the wounded feelings of the survivors, or the sufferings of thé deceased, yet we think there was some testimony taken from the father and the brother of the deceased on the subject of a beneficial interest— uncertain, it is true, but enough perhaps for the jury to consider. We will therefore pass on to the most important question, the question of negligence.
Actionable negligence is defined to be the absence of that care which men ordinarily bestow upon their business. The negligence complained of here is an alleged failure on the part of the company to do its duty in two particulars: First, in failing to supply the deceased with a safe and perfect lantern, on account of which his light was extinguished while on top of the car, and he was therefore compelled to descend to the cab for another, and then immediately to ascend again to his signal post, when the accident happened, and but for which it would not have happened ; second, in erecting a tank so near the track as to cause injury and endanger the safety of the employés of the road, and in permitting this tank to remain in this close proximity to the l'oad.
As to the act of negligence first alleged: There is no doubt that employers are required to use all ordinary care in furnishing their employés with safe and perfect utensils with which to discharge their respective duties, and to do their allotted work, and a failure to bestow this care will amount to actionable negligence. In this instance, no doubt, it was the legal duty of the defendant
This is all the testimony in reference to the lantern, except that the witness who testified to these facts also stated generally that the cup of the lantern dropped out, because it was “no account.” No doubt it was the duty of the deceased when his lamp went out to procure another as speedily as possible, and no doubt he adopted the only course possible at the time to procure another; but it will he seen that the turning point in these different steps was the extinguishment of the light. It was this that necessitated all the rest. Is there any testimony as to the cause of the extinguishment of the lantern connecting the defendant therewith ? Take the matter as stated by the witness, to wit, that the cup dropped out, and this was because the lantern was “no account.” Does this connect the defendant with the result? Does the whole or any part of the testimony go to the point that the defendant had failed to exercise reasonable and proper care, such as men ordinarily bestow on their business in furnishing the deceased with safe lanterns ?
We find not a word in the testimony on that subject, at least none to the precise point necessary to inculpate the defendant, to wit, that the deceased was using a defective lantern, because of the fact that defendant had negligently furnished him with such; on the contrary, it appears that the deceased procured another from the cab, which we suppose was safe and perfect, as there is no" testimony to the contrary. He might have taken that one at the first. That he did not was perhaps his own negligence,
Next, as to the proximity of the tank. The testimony is very clear that the deceased was killed by the timbers of this structure, and it appears theréfore that whether the tank was closer to the track than was necessary for the purposes.of the road, yet it was close enough to crush a person who happened to be on .the outside of the car as it passed. It also appears that the supervisor of the road, Mr. Carpenter, had said that it was too close-; one of the witnesses said it was 18 inches too close, and it was established that it was about that much closer than tanks are now located; hence iron pipes had come into use instead of rubber, and hence the brakes have been put on top of the cars instead of inside. It further appeared that notwithstanding the fact, of its proximity, yet a person might go up the ladder hand over hand with safety. This was the entire testimony as to the tank. These were all necessai’y facts, but admitting them all, where is the testimony as to the main link in the chain by which the company is to be connected with the event complained of. Where is the testimony to the point that there was the absence of due care, or such care as is ordinarily bestowed in such cases by the company in building this tank so near the track ? The fact that a structure is built so near a railroad track that a man hanging on the outside of a car would be struck in passing (and this is all the testimony), is not in itself any evidence of negligence, at least it would not be evidence in every case.
Negligence is a relative term. What would be negligence under one state of facts might be entirely free from negligence under another. No doubt it is the legal duty of a person engaging in any business dangerous to others to exercise due care in providing against such dangers, and the absence of such care as the case requires Avould.be negligence, but at the same time the character of the danger, whether' remote or proximate, probable or possible, would be a material fact in détermining the question of negligence, growing out of the care bestowed in guarding against it. In other Avords) the fact of negligence would, in a given case, greatly depend upon the character of the danger to
Now in this case the deceased was knocked from the train and killed while he was upon the ladder on the outside of the car when the train was passing this structure, and, it is true, that such an accident could not have happened had the tank not been located as it was. But whether the danger of such an accident happening at that point and in that way was of such a character as to have required the company to locate this tank a few inches back, was a material fact in determining whether due care had been exercised, and consequently a material fact on the question of negligence. In locating this tank, did ordinary or reasonable care or foresight demand that the company should foreknow, or even apprehend, that it was probable, remote or otherwise, that the lantern of a brakeman who was posted on the top of the conductor’s cab, and required by the rules of the company to remain there, would go out just as the train was approaching this point, and at the moment that it swept by, that this brakeman, after descending to the cab for a second lantern, would be on the ladder returning to his position ?
It seems to us that these facts, or at least some facts showing the character of care that should have been bestowed, and that it was absent, the danger to be apprehended, and that it was not provided against, or something of that kind, were material facts on the question of negligence before that question could' be properly submitted to a jury. But we find no testimony in the record directed to these points. The substance of the entire testimony is, that the tank was close enough to the track to strike one who happened to be on the outside of the car when the train was passing that point; that the deqeased was on the outside at this precise moment and was killed; but there was no testimony
It is the judgment of this court that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
dissenting. I cannot concur. It seems to me that the question of proper care on the part of the company should be considered with reference to the event which actually occurred, and not the probabilities in advance, whether the concurrence of circumstances necessary to produce it might or might not take place.