Hart v. Railroad Co.

33 S.C. 427 | S.C. | 1890

The opinion of the court ivas delivered by

Mr. Chief Justice Simpson.

The action below was brought by the plaintiff, respondent, to recover damages for injuries alleged to have been sustained by him through the negligence of the Richmond & Danville R. R. Co., a lessee of defendant company. The negligence is alleged in the complaint to have consisted in failing to give the required signal by ringing a bell or sounding the steam whistle as the locomotive and cars approached the crossing of a public highway along which the plaintiff was travelling, by reason whereof the plaintiff was unaware of the approach of said cars, and also that defendant had “failed or omitted to remove the embankment standing along the line of said road so as to admit to persons travelling along said public highway from the town of Johnston southward a view of said locomotive and cars running towards said town of Johnston from the southern terminus of said railroad;” by reason of which it is alleged, that while the plaintiff was travelling in a buggy drawn by one horse, said horse was struck by defendant’s locomotive and instantly killed, his buggy broken up, and himself severely injured, &c., &c., to his damages $5,000. Upon the trial of the case the jury rendered a verdict for $2,500. The appeal of defendant alleges error in the presiding judge in admitting certain testimony, in charging certain propositions, and in refusing to charge certain requests, specifications of which will be found in the exceptions in the “Case.”

It seems that the respondent, shortly after his injury, took a trip to the electric wells in Georgia, and also to Glenn Springs in this State, and he was permitted by his honor, the trial judge, to testify, against defendant’s objection, as to the expenses incurred on these trips, as part of the damages claimed. The two first exceptions of defendant allege error to the admission of this testimony, on the ground that there was no preliminary affirmative evidence introduced showing that these trips were a part of any ordinary or usual course of treatment for such injuries as plaintiff had received, and that the expenses incurred therein were reasonable and necessary.

Where an alleged wrong is shown to have been the cause of the injury complained of, 'it is also to be deemed the cause of all of its concomitants and incidental details which are constituent parts of the injury, including necessary and judicious expenditures made to stay or efface the wrong or to limit the injury. 1 Suth. liam., 96. Where a horse was injured and was sent to a farrier for treatment, it was held that the plaintiff was entitled to recover for the keep of the horse, as well as for the charges of the farrier. 1 Suth. Dam., pages 100. 158. Expenses for surgical and medical aid and nursing, when necessary and reasonably incurred, are part of the injury, and may be recovered under proper pleadings. 3 Suth. Dam., 720. There can be no doubt that if the expenses incurred by the plaintiff here in the mattér involved in these exceptions were necessary, reasonable, and judicious expenditures, they would be a proper ingredient in the damages of the plaintiff, provided, of course, that the injury intended thereby to be stayed and effaced had been caused by the negligent act of the defendant, as alleged. Now, whether such expenditures were reasonable and necessary and judicious was a question of fact. His honor did not undertake to decide this question of fact, but he simply admitted the testimony offered as competent, as bearing upon the amount of said expenditures, leaving the question as to their necessity and reasonableness open to the jury, subject to such further testimony as might be intro-' duced pro and con.

The third exception complains that the respondent was allowed to state his opinion of the value of his services on his farm, and the argument of counsel is that this was error, because the witness did not state the facts upon which his opinion was based. On examining the folio in the “Case” referred to by counsel, it will be seen that the witness did state the facts upon which he gave his opinion. He said that an ordinary hand was worth 75 cents per day, and that he was worth more than that, because1 he controlled the place and others worked under him, and also that his services were valuable right then “in the midst of the crop.” Besides, the witness gave no opinion as to the value of his services in money ; he simply stated that they were worth a “good deal.”

4th. His honor charged the jury that if they found that the injuries were caused by the maliciousness, oppressiveness, or recklessness of the servants of defendant or its lessees, “then you may also add such sum by way of exemplary damages as you may think proper, to teach defendant to behave better in future, not only for the protection of plaintiff, but of the public also and this portion of the charge is the basis of the 4th exception and also of the 7th. They raise the question whether an employer is responsible for the malicious, oppressive, and reckless conduct of an employee injurious to another in exemplary and punitive damages. There is no doubt but that the employer wTould be responsible in such cases for the actual damages incurred, if the injury resulted from an act within the scope of the employee’s duties, but whether to these damages could be added others which are known as exemplary and vindictive is another question. '

While his honor below ruled that the defendant lessor could be held responsible in punitive damages for any malicious, oppressive, or reckless act of the lessee, resulting in injury to the plaintiff, yet he stated to the jury that there was no evidence in the-ease showing either malicious or oppressive conduct, and therefore that these questions were not involved in the case, or before them. The question of error, then, as to so much of the charge may be passed over, yet his honor left the question of recklessness to the jury, charging that if there was recklessness on the pavt of the lessee, &c., the defendant might be made to respond in exemplary damages. And now the precise question before us presented in these two exceptions is whether this last portion of the charge was error. Upon this question there seems to be some difference of opinion in the courts of the different States, but the weight of authority elsewhere, we think, sustains the Circuit Judge here, contrary to the old doctrine that the master Avas not liable for a Avilful or malicious trespass of his servant, unless the act was done by the command or approval of the master. See 3 Suth. Dam., 270, et seq. In our State, the three cases of National Bank v. Railway Co., 25 S. C., 222; Harmon v. Railroad Co., 28 Id., 405; and Quinn v. Railway Co., 29 Id., 386, settled thelaAv with us in conformity Avith the charge of his honor. See also Palmer v. Railroad Company, 3 S. C., 583.

We do not see that the charge of his honor was amenable to exception 9, Avhen read and construed as a whole, nor does it fully appear that his honor Avas requested to draw the distinction pointed out in said exception.

Exception 7 is overruled.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.