November 27, 1900. The opinion of the Court was delivered by This is an action to recover damages for the alleged negligent killing of the plaintiff's intestate by one of the trains of the defendant company, on the 8th of September, 1897. The case came on for trial before his Honor, Judge Gage, and a jury, and a verdict having been rendered in favor of the plaintiff, the defendant appeals from the judgment entered upon said verdict, basing his appeal upon the several exceptions set out in the record. As these exceptions impute error to the Circuit Judge in his charge to the jury, it is proper that the charge, as well as the exceptions thereto, should be set out by the reporter in his report of the case.
The first exception charges the Circuit Judge with error in refusing to charge defendant's seventh request, to wit: "Seventh. In order to prove that the failure to give signals *Page 99 contributed to the accident, the plaintiff must show that his intestate was not aware of the train's approach in time to have avoided the collision, for the only object of a signal is to give such notice. Unless, therefore, a preponderance of the evidence satisfies you that the deceased did not know of the train's approach in time to have avoided the accident, you must find for the defendant." Inasmuch as the Circuit Judge, in response to defendant's sixth request, had instructed the jury that if the signals required by statute had not been given, that would not make the defendant liable, if the deceased knew without such signals, that the train was approaching, and yet, notwithstanding such knowledge, he attempted to cross in face of the train or to board the train; and the jury believe that only a grossly careless person would have so acted under the circumstances, it seems to us that the practical question raised by the first exception, is, whether the burden of proof is upon the plaintiff or upon the defendant, to show whether the deceased knew of the approach of the train in time to have avoided the collision. By the express terms of the request, the burden of proof is placed upon the plaintiff; for the language used is, that "the plaintiff must show that his intestate was not aware of the train's approach in time to have avoided the collision." So that the practical inquiry is as to the burden of proof. We do not think that this burden is upon the plaintiff, for two reasons. 1st. Because it would be requiring the plaintiff, in violation of the general rule, to prove a negative. 2d. Because the knowledge of the deceased of the approach of the train in time to avoid a collision, is a matter of defense, to be proved by the defendant, and not to be disproved in advance by the plaintiff. The statute (sec. 1692 of Rev. Stat.) provides that if a person is injured at a crossing by a collision with the engine or cars of a railroad corporation, "and it appears that the corporation neglected to give the signals required by the article (sec. 1685 of Rev. Stat.), and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision * * * *Page 100 unless it is shown that, in addition to a mere want of ordinary care, the person injured * * * was at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence, or unlawful act, contributed to the injury." From this language, it is apparent that if a person brings an action for damages sustained by reason of a collision with a railroad train at a point where the railroad track "crosses any public highway or street or traveled place," and makes it appear that the railroad corporation neglected to give the signals required by statute, and that such neglect contributed to the injury, he is entitled to recover. But if it is shown that such person was at that time guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence, or unlawful act, contributed to the injury, then he cannot recover. It is clear that the plaintiff in such a case is not bound to negative by testimony such conduct on his part as would defeat his recovery, but that the burden of proof is upon the defendant to show such conduct on the part of the plaintiff as would defeat his right to recover. The case ofBarber v. Railroad Company, 34 S.C. 444, cited by counsel for appellant, is not in point; for in that case there was no question as to the burden of proof, and could not have been, as it was stated at page 451, that while there was evidence of negligence on the part of the defendant in failing to give signals required by statute, yet it could not be said that the injury complained of was the result of such negligence, in face of the admitted fact, testified to both by the party injured and by his companion, that he knew not only that the train was approaching but was near at hand, before he attempted to cross the track. Then follows the quotation from that case incorporated in the exception, to the effect that the manifest object of the statute in requiring the signals to be given was to give notice of the approach of the train to persons crossing or desiring to cross the track, and if the plaintiff knew of the approach of the train, then such notice *Page 101 was not necessary. For the reasons thus indicated, there was no error in refusing the seventh request. There is, however, another reason why the request should have been refused, and that is the omission of the important addition made to the sixth request, at the instance of counsel for plaintiff. It does not follow necessarily that the fact that the person injured knew of the approach of the train in time to avoid the collision would imply gross negligence on his part, and hence the seventh request could not, even if otherwise unobjectional, have been granted without adding what was added to the sixth request.
The second and third exceptions, imputing error to the Circuit Judge in what he said to the jury in reference to the former trial of this case, and as to the disposition of the appeal from the judgment entered on such trial, may be considered together. It is quite true, that when a new trial of a case is ordered by this Court, such trial is a trial de novo; so much so, that incompetent evidence received at the former trial without objection, which thereby became competent on that trial, cannot be received on a new trial, if objected to when offered (Petrie v. R.R. Co., 29 S.C., at page 317), and must be conducted, as far as practicable, as if there had been no previous trial. This, however, does not preclude the parties from agreeing to receive on the new trial either the whole or certain portions of the testimony taken at the previous trial; as seems to have been done in this case. But it would be improper to allow any reference to the action of the former jury, calculated to influence the jury then trying the case. Each jury must act upon its own responsibility and according to its own view of the testimony submitted to it entirely uninfluenced by the action of any other jury. Indeed, it not infrequently happens that the testimony adduced on a new trial is very different from that offered on the original trial, and hence it would be manifestly improper for the jury on a new trial to allow itself to be influenced by the action of the former jury. With this preliminary statement of what we understand to be the true rule *Page 102 upon the subject, we proceed to inquire whether such rule has been violated in this case. The reference made by the Circuit Judge to the former trial in the first quotation from his charge, which is embraced in the second exception, was a mere illustration of his statement to the jury, that if he failed to state the law correctly the party injured thereby had his remedy by appeal to the Supreme Court, and manifestly did not violate the rule, for there is nothing there said calculated to induce the jury to believe that they should pay any attention whatever to the action of the jury in the former trial. The second quotation from the Judge's charge is nothing more than a statement — and a correct statement — of the fact that the Supreme Court had granted a new trial because of error on the part of the Circuit Judge who presided at the previous trial, in instructing the jury that they might give punitive damages in a case of this kind. There is no allusion to the action of the former jury, except that they found a verdict under an erroneous instruction as to the law. It is true, that the Circuit Judge, after disposing of the written request to charge submitted by counsel for plaintiff, was asked, by said counsel, to charge the jury that the new trial "was granted merely on the question of the measure of damages," to which his Honor replied, that "he would do so when he came to give his views of the law." But, as matter of fact, he never did charge the jury that the new trial was granted "merely on the question of the measure of damages," but did charge the jury, as to this matter, in the language found in the second quotation from the charge embraced in the second exception. In this, as we have said, there was no error. The third exception, which is rather an argument than an exception, cannot, for that reason, be sustained; nor is the argument therein presented well founded. It must be kept in mind that the question presented by these two exceptions is whether Judge Gage said anything to the jury which was calculated to induce them to believe that it had been determined at the former trial that the plaintiff would have been entitled to a verdict, but for the error on the *Page 103 Judge who presided at the former trial in instructing the jury that they might give punitive damages in a case of this kind. We do not see that there was anything in what Judge Gage did say to the jury which was calculated to induce any such belief. It does not appear that the jury were informed that there were any other exceptions to the charge of the Judge who presided at the former trial, except that in regard to punitive damages, and they certainly were not informed, and could not have been informed, whether such other exceptions (if any) were well or ill-founded; for this Court in its former decision (54 S.C. at page 498), had expressly declined to consider any of the other exceptions. We do not see, therefore, how it is possible that the jury could have drawn the inference "that a former jury had found a verdict, under a proper charge, with the single exception of the mistake as to punitive damages."
The fourth exception raises the point that the Circuit Judge erred in refusing or failing to instruct the jury as to what was the nature of the damages which they were entitled to give, in the event they reached the conclusion that the plaintiff was entitled to a verdict; or, to state the point more precisely, in not instructing the jury what was the meaning of the following language, used in sec. 2316 of the Rev. Stat., to wit: "And in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought." In the first place, it will be observed that there was no request that the Circuit Judge should explain to the jury what the meaning of the language used in that quotation from the statute was, or to define any of the terms used therein. He had laid before the jury the terms of the statute under which the action was brought, and had, as requested by plaintiff's eleventh request, instructed the jury in the language contained in the first quotation embraced in the fourth exception, which is taken substantially from the opinion of this Court in Petrie's case (29 S.C. at *Page 104 page 320), and had in another part of his charge instructed the jury that they could not give punitive or vindictive, but only compensatory damages proportionate to the injury resulting from the death of plaintiff's intestate to the parties for whose benefit the action was brought, and in still another portion of his charge had used the language found in the second quotation embraced in the fourth exception, which seems to form the basis of appellant's claim of error. Now, in view of the charge as thus stated, which it seems to us gave to the jury the law applicable to the case, if the appellant desired a more extended charge, it was its duty to embody its propositions in the form of requests to charge. See State v. Kendall, 54 S.C. where, at page 195, Mr. Justice Gary uses the following language: "The tenth exception imputes error to the Circuit Judge in not charging the proposition of law therein stated. His Honor substantially charged the law applicable to the case, and if the appellant desired a more extended charge, it was his duty to embody his propositions in the form of a request to charge. This exception is overruled." In this case, the Circuit Judge having charged what law was in his opinion applicable to the case, and having given to the jury the construction which had been placed upon the statute by this Court in the quotation from Petrie's case, the appellant was bound, if a more extended charge was desired, to submit a request to charge, which was not done. For this reason the fourth exception must be overruled. But there is another reason why this exception cannot be sustained, and that is that the exception contains no statement of the specific error or omission complained of; what particular instruction should have been given to the jury is not pointed out. The statement in the exception that the Circuit Judge erred in not declaring the law as required by the mandatory terms of the Constitution, which it is conceded does not meanall the law upon the subject under consideration, but the law applicable to the case made by the testimony (Norris v.Clinkscales, 47 S.C. at page 521), is clearly too general and *Page 105 insufficient, as it is not stated on what points the Judge failed to declare the law, or what "limitations of the law" he omitted to explain.
But even if we are permitted to resort to the argument for the purpose of ascertaining what were the points upon which it is alleged that the Judge omitted to explain the law, we suppose that the error complained of was in the omission to instruct the jury that they are not allowed to take into consideration, in estimating the amount of damages, the wounded feelings of the persons for whose benefit the action is brought, growing out of the death of their relative. But, as we have said, there was no request for any such instruction in this case as there was in Petrie's case, where the late Judge Norton was requested and did so charge the jury. But we do not understand that it was decided in that case that the wounded feelings of the beneficiaries at the loss of their relative could or could not be considered by the jury as one of the elements in making their estimate of the amount of damages. For while Judge Norton did so charge the jury in that case, yet, as there was no exception to that portion of his charge, this Court did not, and could not, properly consider whether there was any error in that portion of his charge. All that was really decided in that case, so far as this particular matter was concerned, was that the jury were not confined, in making their estimate of the amount of damages, to the loss of any legal claim which the beneficiaries may have had upon their deceased relative, but, in the language of the statute, "the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties, respectively, for whom, and for whose benefit, such action shall be brought." This is manifest from the fact that the exception there considered made the point that, as the children of the deceased, for whose benefit the action was brought, were all adults, and had been settled off to themselves several years before their mother was killed by the railroad train, they could not have any legal claim on the deceased for their support. As to *Page 106 this point, the Supreme Court used the following language: "It is contended, however, that unless the children had somelegal claim on the deceased for support, no damages could be recovered for their benefit, as the children of deceased were all adults, living to themselves, they could not possibly have any such claim. This view is based upon the idea that the `injury' spoken of in the statute, means only the deprivation of a legal right. This, it seems to us, is a narrow view of the statute, and, on the contrary, its language repels any such view;" and the Court, after considering the terms of the statute proceeds to say: "As it is quite certain that the beneficiaries of the action may sustain injury by the death of a relative, over and above the loss of any legal claim which they may have upon such relative, it follows that the view contended for cannot be sustained." It is quite clear, therefore, that all that was decided in Petrie's case so far as the particular matter now under consideration is concerned, was that the fact that the beneficiaries have no legal claim on their deceased relative, does not deprive them of the right to recover damages in a case like this; and that it did not decide the question, which, as we understand, the appellant desires to make by the fourth exception, to wit: whether, in a case like this, the jury are at liberty, in forming their estimate of the amount of damages, to take into consideration the wounded feelings of the beneficiaries resulting from the death of their relative. Nor, so far as we are informed, is there any case in this State which distinctly decides that question, though the very recent case of Mason v. SouthernRailway Co., 58 S.C. 70, does seem to imply that such an element may be taken into consideration by the jury in estimating the amount of damages; for in that case the person killed was an infant about sixteen months old. But the decision was based upon Petrie's case, and the case of Strother v. Railroad Co., 47 S.C. 375, in which the question was whether the Circuit Judge had erred in refusing to instruct the jury: "That the measure of damages in statutory actions for injuries causing deaths is compensation for the pecuniary *Page 107 loss to the survivors from the death of the deceased." Held, that there was no error, basing the decision upon the terms of the statute and the decision in Petrie's case. The decisions elsewhere seem to be conflicting. In 8 Ency. of Law, at page 926 of the second edition, we find the following language, which is said to be an expression of the general rule: "Unless the statute expressly so provides, nothing can be allowed to the plaintiff, by way of damages, as a solutium, to compensate him for his wounded feelings or for the mental anguish the death of his relative may have caused him, and proof of such mental suffering is not admissible on the question of damages." But in the very next paragraph, "a modified doctrine," as it is termed, is stated as follows: "In some jurisdictions, however, where the legislature has provided that the jury shall assess such damages as they deem fair and just with reference to the injuries resulting from the death, thus omitting to limit the damages to the `pecuniary' injury, it is held that the jury may consider the loss of society caused from the death, and the comfort which a parent would have derived from rearing his child." It seems to us that what is stated above as the modified doctrine, is much more in conformity to the terms of our statute, and the trend of our decisions construing the statute than the above stated general rule. By the express terms of our statute, as we have seen, the jury are authorized to give "such damages as they may think proportioned to the injury resulting from such death to the parties, respectively, for whom, and for whose benefit, such action shall be brought," and this Court has construed the statute, in Petrie's case and in Strother's case, recognized and followed in Mason's case, supra, to mean, not merely thepecuniary injury which may be sustained by the loss of anylegal claim which they may have had upon the deceased for their support, or for the services of the deceased; and in the case of Garrick v. Railroad Company, 53 S.C. 448, recognized and followed in the former decision in the present case, has held that the language of the statute necessarily implies that compensatory, and not punitive, damages may be *Page 108 awarded. So that when the Circuit Judge laid before the jury the terms of the statute, and instructed them how that statute had been construed by this Court, he did all that was necessary; and there was no necessity for him to go further and explain to the jury what was meant by the words "such damages," for, in fact, these words are, practically, defined by the language of the statute itself, as construed by the cases just cited, to mean whatever damages the jury may think are a proper compensation to the parties for whose benefit the action is brought, for the injury, whether arising from the pecuniary loss or otherwise, sustained by such parties by reason of the death of their relative. If it should be said, as has been argued in this case, that the view which we have adopted would leave the jury entirely untrammeled by any rule, and would permit them to indulge in "wild and extravagant" notions as to what is a proper compensation to the parties for the injury sustained, two answers can be made. In the first place they are not, as we have seen, entirely untrammeled, for they cannot give vindictive damages, and are limited to such an amount as they may think will afford a proper compensation for the injury sustained by the parties for whose benefit the action is brought. And in the second place, if the law-making power has seen fit to place no other limit upon the jury than what they may think proportioned to the injury sustained, we do not see by what authority this Court can undertake to prescribe any additional limitation. It is no more than what is allowed in every action for a tort sounding in damages. The only remedy provided by law against capricious, wild or extravagant verdicts, is by a motion, addressed to the Circuit Court, for a new trial upon the ground of excessive damages, and our books of report show that such remedy has, not unfrequently, been resorted to in just such cases as the present. The fourth exception must, therefore, be overruled.
The fifth and sixth exceptions, based as they are upon the passage from the charge which is quoted in the fifth exception, may be considered together. These exceptions *Page 109 are, practically, disposed of by what we have said in considering the fourth exception. But it may be proper to notice the particular matter complained of in these two exceptions, viz: whether it was error to refuse to charge the jury that a violation of the city ordinance therein referred to by the deceased, would be such a violation of law as would defeat this action, because he had not been requested to do so. While it is true that the Circuit Judge was not requested to charge as there indicated, yet it is equally true that the Circuit Judge did charge defendant's thirteenth request, with certain words very properly added by the Judge. That request reads as follows: "Section 609 of the revised ordinances makes it unlawful for any person, not employed by railroad companies, to get on or off their cars or locomotives while the same are in motion," to which the Judge added these words, "within the corporate limits of the city," to which additional words no exception was, or could be, taken, as they are taken from the words of the ordinance. Now, as the jury were instructed that the statute provides that if a person is injured by a collision with the engine or cars of a railroad company at a crossing, and it appears that the railroad company had neglected to give the signals prescribed by the statute, such railroad company shall be liable for all damages caused by the collision, unless it is shown that the person injured was, at the time, "acting in violation of the law * * * and that such * * * unlawful act contributed to the injury;" and when, as we have seen, the jury were likewise instructed that the city ordinance made it "unlawful" for any person, not employed by the railroad company, to get on or off the cars or locomotives while the same were in motion, within the corporate limits of the city, it seems to us that the Circuit Judge declared the law applicable to the case; and if the appellant desired a more extended charge, a request to that effect was necessary. The fifth and sixth exceptions must also be overruled.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed. *Page 110