Action by respondent in his representative capacity as administrator of the estate of Thomas Hugh Pollard, deceased, for the benefit of the wife and a 19-year-old son, against appellants, and one, W.C. Bruner, who during the progress of the case, was, by a directed verdict in his behalf, eliminated from the case.
Respondent's intestate was the owner of and riding in a vegetable truck driven by his employee, and traveling north from Charleston, S.C. on old U.S. Highway No. 17, and as the truck was driven upon the tracks of the appellant, Atlantic Coast Line Railroad Company, at Heineman, S.C. the tracks crossing the highway at right angles, a passenger train of said appellant, traveling in an easterly direction, collided with or struck the truck, resulting in its demolishment, and instant death to Pollard. The amended complaint of respondent *Page 428 alleges that the damage and injury to and death of his intestate, were caused by, due to, and resulted from the joint and concurrent negligence, carelessness, recklessness, willfulness, and wantonness of the appellants and their agents and employees, in causing the said locomotive and train to approach and go upon said crossing at a rapid, excessive and dangerous rate of speed, although the engineer was fully acquainted with all the dangerous and hazardous conditions at said crossing, created by the acts, defaults and omissions of the appellants; in causing the train to approach and go upon said crossing at a rate of speed as above described without reducing its speed, and without giving the statutory signals or any other signals or warning that it was approaching, and crossing the highway; in unnecessarily and for an unreasonable length of time keeping and maintaining a string of box cars on a spur or side track in close proximity to the highway, which, combining with structures and trees on the south of the railroad, and west of the highway, obstructed the view of eastbound trains on the said railroad track and prevented the operators of northbound motor vehicles approaching said crossing, from seeing or observing the approach of eastbound trains.
The appellants denied all allegations of negligence, carelessness, willfulness and wantonness, and alleged that respondent's intestate, by the exercise of reasonable care or by the exercise of slight care, could have seen and heard the train approaching, yet he negligently, carelessly and with gross carelessness, gross recklessness and gross willfulness, failed and neglected to take the slightest care for his protection, and permitted the truck to be driven into the front of an approaching train, which could have been seen and heard in ample time to have brought the truck to a stop by the exercise of the slightest care; and pleaded contributory negligence, contributory gross negligence, willfulness and recklessness of respondent's intestate and of the driver of the truck in bar of the action. *Page 429
At the conclusion of the testimony, motion for a directed verdict as to the defendant, Bruner, having been granted, there being no testimony connecting him with the case, the appellants moved for a directed verdict on the ground that the only reasonable inference — the only inference that could possibly be drawn by a reasonable man from all of the testimony, was that the respondent's intestate was as negligent, such negligence contributing as a proximate cause to his injury; was as wanton, if that is possible, such wantonness contributing as a proximate cause of his injury, and was as grossly negligent, such gross negligence contributing as a proximate cause of his injury, as either of the defendants; and that there was no reasonable inference that could be drawn from all of the testimony, but that respondent's intestate and the party in whose charge he had placed his automobile and himself, were grossly negligent, and that such gross negligence contributed to the injury as a proximate cause thereof.
This motion was refused, the Court submitting the case to the jury as to actual damages. The jury returned a verdict against appellants for the sum of $40,000.00.
On motion for a new trial, all grounds therefor were overruled, except as to the excessiveness of the verdict, and a new trial nisi was granted unless respondent, within ten days, remitted $16,000.00. This was done, and the judgment stands at $24,000.00.
Appellants come to this Court on exceptions alleging error on the part of the trial Judge in refusing to grant their motion for a directed verdict on the grounds on which it was predicated, and hereinbefore set forth; and in refusing a new trial absolute,
"3. * * * because, in view of the testimony as to extent of the injuries sustained by the beneficiaries, and in view of the charge of the presiding Judge as to the elements to be considered in assessing damages, the amount of the verdict disclosed such prejudice against the defendants or sympathy or partiality for the beneficiaries as to indicate *Page 430 that the verdict was in no sense the result of the exercise of the sound judgment of the jury but was the result of such caprice, prejudice, passion or partiality as to demonstrate that defendants had failed to receive the consideration to which any litigant is entitled at the hands of a jury."
"4. In not setting aside the verdict and in not granting a new trial absolute on the ground that the amount found by the jury, and even the amount which plaintiff agreed to accept in order to avoid a new trial, was a grossly excessive amount to be allowed for all injuries which could have been found from the testimony to have been sustained by the beneficiaries on account of the death of plaintiff's intestate, and, therefore, that there was no sound basis for permitting a final judgment in such grossly excessive amount."
It will be noted that the question, if appellants were negligent in any of the particulars alleged, is not before the Court. The question is: Can any other reasonable inference be drawn from all the testimony than that respondent's intestate was guilty of such negligence, such gross negligence, without which the injury resulting in his death would probably not have occurred, notwithstanding the alleged negligence of appellants?
Where a defendant sets up the affirmative defense of contributory negligence and gross contributory negligence, the burden of establishing such defense by a preponderance of the testimony rests upon such pleader just as a plaintiff must establish the allegations of his complaint by a preponderance of the testimony. And in passing upon a motion for a directed verdict, the Circuit Judge is required to view the testimony most favorable to the plaintiff.
It would serve no useful purpose to herein review the testimony and describe the surrounding conditions existing at the time of this accident, as shown by the record and exhibits, and since this case must go back for a new trial on another ground, we refrain from a discussion of same. Let it therefore suffice for this Court to say that the testimony and exhibits have been carefully considered, and while it is *Page 431 a border line case, we cannot say, as a matter of law, that the only reasonable inference to be drawn therefrom is that the death of respondent's intestate was the result of his own contributory negligence and gross contributory negligence, as a direct and proximate cause. It was not error to submit this issue to the jury.
We now come to Exceptions 3 and 4. While we will not discuss these exceptions separately, yet No. 3 raises a quite distinct issue from No. 4.
Section 412 of the Code of 1932 (Lord Campbell's Act), after providing for whose benefit an action for a wrongful act causing the death of a person may be brought, reads in part as follows:
"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 arriving at actual damages, the jury may consider mental anguish or suffering by reason of the intestate's untimely death, and the loss of his companionship as a husband and father. Brickman v. Railway, 74 S.C. 306,54 S.E., 553. Actual pecuniary loss does not have to be proven in order to support a recovery under the statute. Barksdalev. Seaboard Air Line Ry. Co., 76 S.C. 183, 56 S.E., 906. Where there is no evidence in a case of any pecuniary loss to the parties in interest, in whose behalf the plaintiff is suing, the jury can only consider such damage as they have suffered, otherwise than from pecuniary loss in making up a verdict (Barksdale v. Ry. Co., supra), but in Gilliam v.Southern Ry. Co., 108 S.C. 195, 199, 93 S.E., 865, it is stated (page 867): "When the relation between deceased and the beneficial plaintiff is that of husband and wife or parent and minor child, in the absence of evidence to the contrary, actual pecuniary loss will be presumed from the death." Citing cases. However, one sued for a wrongful act resulting in the death of another may show that in fact no *Page 432 pecuniary damages have been suffered by the surviving relatives, and such damages may not then be considered by the jury, if there be no conflict in the testimony. Gilliam v. Ry.Co., supra.
In this case respondent's intestate was 57 years of age, in good health, and engaged in the commission business. Whether he conducted a profitable business is not disclosed by the record. From the fact that he accompanied his motor truck on at least some of its trips in hauling produce, the natural inference is that he conducted a limited or small business. He left surviving him a wife and a son 19 years old. The presumption is that they had a pecuniary interest in his continuing to live. There is no testimony as to what amount he contributed to their support, or advised them in the handling of their affairs, if they were engaged in any business.
Following the general charge of the trial Judge to the jury, he read to them respondent's requests to charge, and appellants' requests to charge, and asked of respondent and appellants if either desired anything else. Whereupon, counsel for appellants stated, as follows: "I don't know whether your Honor will state to the jury what principles shall be applied in measuring damages or not. I am just making that suggestion. I am not making the request." The trial Judge, after stating that he was not going into the Fordcase, as he did not think it was best to do that, charged:
"Now, as I stated, gentlemen, the question of the measure of damages in a case is one entirely for you. In other words, only actual damages can be applied here, you cannot apply any punishment or anything like that, but just to make the party whole. In other words, what was the plaintiff, as I understand it, what was he, the dead man, worth to the people suing, that is about the size of it. That would be the measure of damages. In other words, not from a sentimental standpoint, you cannot apply that, but what was he worth in dollars and cents, from a material standpoint. You recall the age of the son. Now, what was he worth?" *Page 433
This was the only instruction given the jury on the matter of measure of damages. No other element of damages could have been considered, and the jury brought in a verdict for $40,000.00, as hereinbefore stated. In other words, insofar as the jury trying this case was concerned, the above verdict was rendered on the presumption that the surviving relatives suffered pecuniary damages, and in that amount. Appellants therefore take the position that the amount of the verdict could in no sense have been the result of the exercise of the sound judgment of the jury, and could be indicative of but one thing, and that was that the jury had demonstrated that no serious thought had been given to the rights of appellants, and that appellants had failed to receive the consideration to which any litigant is entitled at the hands of a jury.
We are not at variance with the position of appellants. Before damages could be assessed, the jury had to pass upon at least two issues, (1) Had the respondent proven by the preponderance or greater weight of the evidence one or more of the delicts charged in the complaint, and that such delict was the proximate cause of the death of his intestate, or contributed thereto as a proximate cause; and (2) Was respondent's intestate guilty of contributory negligence, contributory gross negligence, but for which the accident would not have occurred, notwithstanding the negligence of appellants, and combining therewith was the proximate cause of the death of his intestate.
We cannot conceive of a jury, in the absence of any instruction from the Court as to the elements of damages which they could consider, and a total absence of testimony of the earning capacity of the intestate, and of any amounts contributed by him to the support of the beneficiaries, rendering a judgment in the sum of $40,000.00, giving any serious and judicial consideration to the necessarily prior questions above set out.
That a trial Judge may grant a new trial nisi is unquestioned, *Page 434 but we do not think that the granting of a new trialnisi is a "cure all."
In our opinion the trial Judge should have granted a new trial absolute — that it was error to refuse a new trial on the grounds and for the reasons stated in Exception No. 3, which is sustained.
MR. JUSTICE BAKER concurs.