The opinion herein was filed April 2, 1906, but on petition for rehearing, the remittitur was held up until
May 1, 1906. The opinion of the Court was delivered by This is an action under the statute commonly known as Lord Campbell's Act. The complaint alleges:
"That heretofore, on the 3d day of September, A.D. 1903, Henry C. Brickman was in the employment of the defendants above named as an engineer, and on said day was in charge and operating a locomotive of the defendants, drawing one of its passenger trains, operated over the line of the road known as the South Carolina and Georgia Railroad Extension Company, as aforesaid, between Camden, S.C. and Blacksburg, in the county of York, in the said State.
"That heretofore, on the 3d day of September, A.D. 1903, when the locomotive and cars, so operated as aforesaid, reached a point on the line of the defendant's road, on a trestle constructed over Fishing Creek, in the county of York, the said trestle gave way, and the locomotive so operated by the said Henry C. Brickman, together with the *Page 317 coaches attached to same, were precipitated into the depth below, and in consequence thereof the said Henry C. Brickman was crushed and mangled and otherwise injured, that he then and there died from the effects thereof.
"That the said Henry C. Brickman came to his death in the manner and by the means aforesaid, caused by and through the negligent, wanton, wilful and reckless acts and conduct of the defendants, in providing, maintaining and keeping over the said Fishing Creek, on the line of its said road, an unsafe and defective trestle, in that the timbers in said trestle were old, rotten and decayed, and insufficient to support the weight of the said locomotive and cars, and in consequence thereof the same were precipitated into the said creek, thereby causing the immediate death of the said Henry C. Brickman as aforesaid."
The defendants denied the allegations of negligence and wantonness.
The jury rendered a verdict in favor of the plaintiff for $55,000.
The defendants made a motion for a new trial. Whereupon his Honor, the presiding Judge, ordered that a new trial be granted, unless the plaintiff remitted $15,000 of the verdict, which was done.
The defendants appealed upon exceptions which will be set out in the report of the case. The exceptions will be considered in regular order.
First exception: There are several reasons why this exceptions cannot be sustained. The testimony was responsive to the allegations of the complaint that Henry C. Brickman "was crushed and mangled." The action was for punitive as well as compensatory damages; therefore, the testimony was relevant for the purpose of showing the surrounding circumstances. Pickens v. Ry., 54 S.C. 498,32 S.E., 567; Young v. Tel. Co., 65 S.C. 93.43 S.E., 448; Marsh v. Tel. Co., 65 S.C. 430, 43 S.E. 953;Gosa v. Ry., 67 S.C. 347, 45 S.E., 810. *Page 318
The only objection urged against the admissibility of the evidence was that it was irrelevant; other similar testimony was introduced without objection, and we fail to see wherein the ruling of the presiding Judge was prejudicial to the appellants. Hyland v. Tel. Co., 70 S.C. 315,49 S.E., 879; Providence Machine Co. v. Browning, 72 S.C. 424.
Second exception: This exception must be overruled on the ground that when the presiding Judge errs in stating the issues raised by the pleadings, it is incumbent on the parties to call his attention to such error, if it is to be made the basis of an appeal. Westbury v. Simmons,57 S.C. 467, 35 S.E., 764; Bryce v. Cayce,62 S.C. 546, 40 S.E., 948; Thompson v. Ins. Co., 63 S.C. 290;41 S.E., 464; State v. Still, 68 S.C. 37,46 S.E., 564; Turner v. Lyles, 68 S.C. 399, 48 S.E., 301.
Third exception: The agreement to which reference was made was as follows:
"Messrs. Legare Holman and W.B. McCaw, plaintiff's attorneys.
"Gentlemen: While we do not admit liability in the above case, under the allegations set forth in the complaint herein, nevertheless the defendants are willing that Mrs. Brickman and her children should receive actual compensation on account of the death of Henry C. Brickman, and to this end hereby consent, that a jury assess the amount of such compensation to be awarded the plaintiff herein, and upon the trial of this case you are at liberty to read this communication to the jury after each party has introduced such testimony as is competent and relevant to the issues raised by the pleadings. The case then to be argued upon the evidence as to punitive damages and amount of actual damages — that is to say, that the question of actual damages is admitted, except as to the amount thereof. The question of punitive damages is not admitted, and the *Page 319 same is to be argued before the jury as to whether or not the same should be allowed.
B.L. ABNEY, GEO. W.S. HART, C.E. SPENCER, Per Geo. W.S. Hart, "Attorneys for Defendants, Appellants."
The letter was formally introduced in evidence without objection and the presiding Judge did not undertake to construe it, until both parties had introduced their testimony. As the agreement was embodied in a written instrument, its construction was devolved upon the presiding Judge.
Fourth exceptions: The assignment of error "(a)" cannot be sustained, because the facts tended to show as a natural consequence that there was injury from mental anguish and loss of companionship. The cases of Strother v. R.R., 47 S.C. 375, 25 S.E., 272; Nohrden v. Ry., 59 S.C. 37 S.E., 228, and Stuckey v. Ry., 60 S.C. 237,38 S.E., 416, show that assignment of error "(b)" must be overruled.
Fifth exception: When that portion of the charge set out in the exception is considered in connection with the other part of the charge, it will be seen that assignment of error "(a)" is not well taken.
Assignment of error "(b)" cannot be sustained, for the reason that if the defendants desired a ruling in the particular mentioned, they should have presented requests to that effect.
Sixth exception: This exception is disposed of by what was said in considering the fifth exception.
Seventh exception: We can discover nothing in the charge contained in this exception indicating that the presiding Judge undertook to instruct the jury as to what facts would constitute wantonness, or that he in any respect trenched upon the province of the jury.
Eighth exception: Section 2851 of the Code of Laws is *Page 320 as follows: "Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony."
Section 2852 provides that every such action shall be brought for the benefit of the wife, husband or child, "and in every such action the jury may give such damages including exemplary damages, where such wrongful act, neglect or default was the result of recklessness, wilfulness or malice, as they may think proportional to the injury."
Our construction of the statute is that it confers the right to damages, and only leaves to the discretion of the jury theamount of such damages. There is nothing in the statute to take the case out of the principle announced in Beaudrot v. Ry., 69 S.C. 160, and, affirmed in Poulnot v. Tel. Co.,69 S.C. 545, 48 S.E., 622.
Ninth exception: As the presiding Judge was not requested to rule, and in fact made no ruling on the question, it is not properly before the Court for consideration.
Tenth exception: The cases cited, in considering the fourth exception, show that the charge was too favorable to the defendants and that they, therefore, have no cause to complain.
Eleventh exception: We deem it unnecessary to cite authorities to sustain the proposition that this Court cannot consider an exception assigning error that the damages were excessive.
Twelfth exception: The assignments of error in this exception *Page 321 have either been disposed of, in considering the other exceptions, or are immaterial or untenable for the reasons stated in the order granting a new trialnisi, which was as follows:
"A motion was made before me only to reduce the verdict, on the ground that the amount found was excessive; not a single exception was noted during the trial, and during argument to reduce verdict, counsel conceded that they did not have a single complaint to make, as to any errors of law committed during the trial.
"The testimony in the case showed that Brickman was forty years of age; that he was an engineer in good standing; that he was earning from $140 to $170 per month; that his expectancy of life was over twenty-eight years; that he was a good devoted husband and father; that he was running his engine on a passenger train on defendant's road on September 3d 1903, when the trestle over Fishing Creek gave away from some cause and precipitated the engine and cars in the creek, quite a distance, killing Brickman and several others who were on the train as passengers and train crew, five I believe in number, and injuring some twenty persons or more. The testimony further showed that said trestle was old and in a dilapidated condition, that it was built in 1887 out of old-field pines, and had been only partially renewed from time to time, and the officers and servants whose duty it was to keep the same in repair, had knowledge of the fact that it was not in a fit condition to be traveled over, and the timbers exhibited during the trial were rotten through and through.
"Another significant fact was that the servants of the defendants burned up all the timbers of the wrecked trestle as soon as they could, and it was due to Mr. Wylie, who had a son in the wreck, that any timber was saved to be exhibited in Court.
"The whole details of the wreck were extremely harrowing. In awarding actual damages the rule has been laid down by our Supreme Court, that the jury can award such *Page 322 compensatory damages as they see proper under the testimony proportionate to the injury sustained and take into consideration the earning capacity of the party injured, the loss of companionship and society of a husband and father, and any other injury sustained by them. Now the jury had before them the earning capacity of Brickman; it cannot be calculated in dollars and cents what his companionship and society were worth to his wife and children, or what injuries they sustained from his untimely taking off.
"Now, was there any wantonness on the part of the defendants? Under the fact as proven and under our decisions there was `a conscious failure to observe due care.' It was their duty to keep the roadbed in reasonably safe repair. If they had knowledge that this trestle was not in a safe condition, and they disregarded this and failed to do their duty and repair the same, it was a wilful, wanton and high-handed disregard of the rights and safety of the public and of the train crew who had to run over this trestle not to see that the same was put in proper repair, and made reasonably safe, and for this reason the jury were justified in awarding exemplary or punitive damages.
"If this action had been that of a passenger who was killed that day, I would not reduce the verdict, for I regard it as a reckless disregard of the rights of the public, but as the deceased was consciously engaged in a hazardous business, and one that he knew that he could not reasonably expect to follow all of his expectancy or until he was an old man, and taking into consideration the expenses of living, and also taking into consideration the present value of money as compared to his future yearly earnings, I have concluded to reduce the verdict as I think it under all the circumstances of this case somewhat excessive."
Upon the settlement of the case for hearing on appeal, the presiding Judge thus explains the admissions of counsel: "As to statement made by counsel on motion for new trialnisi, as to having no complaint to make as to any errors of law committed by the Judge, I understand that was for the *Page 323 purpose of the motion then before the Court, to wit: to reduce the verdict, and concession was made by counsel as then advised; that this statement was not intended by counsel to waive any rights they may have upon fuller investigation of record, and upon reflection later, and was not intended to waive their right to appeal from any order made, or from any ruling during the trial, or charge of the Judge."
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.