The opinion of the court was delivered by: Oxner, Justice.
This is an action to recover damages for the alleged
wrongful death of Mrs. Billie Baker Turner. About 12:10
A.M. on August 23, 1950, an automobile driven by her collided with a freight train of the Charleston & Western
Carolina Railway Company at a spur track crossing on U.S.
Highway No. 21, approximately four miles north of the
town of Beaufort. Her husband, who was riding with her,
was killed instantly, She died the following day as a result
of injuries sustained in the collision. The action was originally
brought for the benefit of her two brothers, James
Monroe Baker and William Eugene Baker, and her sister,
Mrs. Gertrude B. Dressing. The case was tried at the February,
1953 term of the Court of Common Pleas of Hampton
County and resulted in a verdict for plaintiff for $30,000.00
actual damages and $12,500.00 punitive damages.
From the judgment entered thereon, the Railway Company
appealed. In an opinion filed on February 15, 1955, the
judgment was reversed and a new trial granted on account
of certain erroneous instructions relating to damages. Nelson
v. Charleston & W.C.R. Co., 226 S.C. 516,
86 S.E.2d 56.
Subsequent to the first trial of the case, the sister, Mrs. Gertrude B. Dressing, died and the complaint was amended by eliminating her as a beneficiary, leaving an action solely for the benefit of the two brothers. The case was tried a second time in March, 1956, and resulted in a verdict for the plaintiff in the sum of $35,000.00 actual damages and $17,500.00 punitive damages. A new trial was ordered unless the plaintiff remitted $6,000.00 of the verdict for actual damages. In due time the remission was made and judgment entered for $29,000.00 actual damages and $17,500.00 punitive damages. From this judgment, the Railway Company has appealed.
The first question presented is whether the trial Judge erred in overruling appellant's motions, timely made, for a nonsuit and a directed verdict upon the grounds that there was no proof of actionable negligence or wilfulness on the part of appellant and that the death of respondent's intestate resulted solely from her own gross negligence and wilfulness but if not, she was, as a matter of law, at least guilty of contributory negligence, gross negligence and wilfulness. The same contention was raised on the first appeal. In overruling same, we said: "As the case must be remanded for a new trial, we shall not discuss in detail the evidence, which was conflicting. In our opinion, it was sufficient to carry to the jury the issues of both actual and punitive damages." There was no petition for a rehearing by appellant.
We think our conclusion on the first appeal that the evidence was sufficient to warrant submission of the case to the jury as to both actual and punitive damages is the "law of the case." Steele v. Atlantic Coast Line R. Co., 109 S.C. 104, 95 S.E. 180; Brown v. Piedmont Mfg. Co., 109 S.C. 343, 96 S.E. 138; Johnson v. Atlantic Coast Line R. Co., 116 S.C. 135, 107 S.E. 31; Jenkins v. Southern R. Co., 145 S.C. 161, 143 S.E. 13; Cato v. Atlanta & C.A.L. Ry. Co., 164 S.C. 123, 162 S.E. 239; Cohen v. Standard Accident Insurance Co., 203 S.C. 263, 17 S.E.2d 230; Holly Hill Lumber Co., Inc., v. McCoy, 210 S.C. 440, 43 S.E.2d 143; Royal Crown Bottling Co. v. Chandler, 228 S.C. 412, 90 S.E.2d 489.
Although we granted appellant's counsel permission to argue against that portion of our previous opinion in which we held that the motions for nonsuit and directed verdict were properly overruled, we are now convinced that appellant should not be permitted to relitigate the question. On the first appeal it was fully argued and carefully considered by this Court. After the decision was rendered, appellant again had the opportunity of raising the question by petition for a rehearing but failed to do so.
Of course, the doctrine of "the law of the case" has no application where the facts relating to the question decided are substantially different on a second appeal. In order to escape the application of the doctrine, however, there must be a material change in the evidence. Additional evidence cumulative in nature will not take the case out of the rule and constitute a material change where evidence of the same class and character was considered on the former appeal. 3 Am. Jur., Appeal and Error, Section 1000.
After a painstaking examination of the transcript of record on the former appeal, we find that the testimony with respect to the issues of negligence and wilfulness and contributory negligence, gross negligence and wilfulness was substantially the same on both trials. Respondent's proof as to liability was certainly no weaker on the second trial. Counsel for appellant have set out in their brief numerous alleged variances but none has any material bearing on the question of a directed verdict. Some of the differences mentioned relate solely to the issue of damages; some to the order in which the witnesses testified. Attention is also called to certain additional testimony offered at the second trial but it was of a cumulative nature. Testimony of the same character was considered by us on the former appeal.
It is next contended that the Court erred in permitting respondent "to prove abandonment of the spur track involved." We think appellant's counsel have misapprehended the position taken by respondent. He neither alleged nor sought to prove that the track had been abandoned. His allegation was that "the defendant ran an extra, or special, train on and over the said practically abandoned and seldom used spur track * * *." The Court admitted in evidence a picture taken two days after the accident showing grass and weeds in the roadbed on each side of the crossing. As stated by the trial Judge, this picture was not offered "for the purpose of showing that the spur track was abandoned, but to show the conditions that existed at the time of the collision." It was clearly admissible for this purpose. It is also urged that the Court erred in permitting several witnesses to testify that the spur track was very infrequently used. This testimony was also competent. It was proper to show the general character, description, and use of the crossing at which the accident happened, including the extent and frequency with which the crossing was used by travelers on the highway and "by trains passing over the railroad tracks." 75 C.J.S., Railroads, § 847. Also, see annotation in 161 A.L.R., at page 118.
It is also claimed that the Court erred in admitting in evidence the mortuary table (Section 26-12 of the 1952 Code). It is argued that since there was no proof of any pecuniary loss to the beneficiaries, there was no issue to which the mortuary table was applicable. If, as we shall hereinafter show, respondent was entitled to recover any damages sustained by the two brothers on account of loss of companionship and society, we think it was proper to show the probable life expectancy of the deceased. Cook v. Atlantic C.L.R. Co., 196 S.C. 230, 13 S.E.2d 1, 133 A.L.R. 1144.
Since for the reasons hereinafter stated there must be a new trial, we shall not pass upon Exceptions 10 and 11 relating to alleged improper argument.
In an action for wrongful death the statute, Section 10-1954, authorizes the jury to give such damages, including in a proper case exemplary 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 Mishoe v. Atlantic C.L.R. Co., 186 S.C. 402, 197 S.E. 97, 104, it is stated that the elements of damage which may be considered under this statute "include: (1) Pecuniary loss, (2) mental shock and suffering, (3) wounded feelings, (4) grief and sorrow, (5) loss of companionship, and (6) deprivation of the use and comfort of the intestate's society, * * *".
Respondent's intestate, a woman of good health and at the time of the accident approximately 58 years of age, and her husband, a retired Naval officer, who was instantly killed in this accident, resided at Beaufort, South Carolina. She was survived by a sister, who lived in Florida, and two brothers who resided in New York. As previously stated, the sister died after the first trial, leaving the two brothers as the sole persons for whose benefit this action is brought. Neither of the brothers testified and it was conceded in oral argument that they were not present at the trial. There is no explanation in the record for their absence. The only ...