# Mishoe v. Atlantic Coast Line R. Co. > Supreme Court of South Carolina · March 16, 1938 · 186 S.C. 402 URL: https://www.frixlaw.com/law-library/cases/3884224 ## Case - **Full name:** Mishoe v. Atlantic Coast Line R. Co. Et Al. - **Court:** Supreme Court of South Carolina - **Decided:** March 16, 1938 - **Citations:** 186 S.C. 402; 197 S.E. 97; 1938 S.C. LEXIS 65 - **Precedential status:** Published - **Opinion:** Dissent by Bonham - **Judges:** Ci-Iiee, Stabrer, Kishburne, Johnson, Stabler, Fishburne, Messrs, Bonham, Baker, Carter - **Cited by:** 47 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3884224 ## How later opinions describe it (automated extraction) - noting the appellate "court looks to the substance and not to the shadows" in evaluating points raised on appeal - noting "[t]his court looks to the substance and not to the shadows" when evaluating issues raised to it ## Opinion text Mr. Justice Bonham (dissenting) : I desire that the following be published as an addition to my opinion in the first hearing. In the main opinion there is quoted, from 17 Corpus Juris, the following: “Where the law presumes a pecuniary loss to the beneficiaries, substantial damages, it is said, may be recovered without proof of special pecuniary loss. But the general rule is that in order to authorize a recovery of damages for death by wrongful act, the evidence must show the extent and amount thereof, or furnish facts and data as a basis from which the jury may approximate the proper amount with reasonable certainty. Since, however, direct proof of the value of human life is not possible, and what is reasonable compensation therefore must be left to the sound discretion and judgment of the jury, it is not necessary to show the precise money value of the deceased, or the exact amount of damages suffered by the beneficiaries, in order to sustain a recovery of substantial damages where a foundation for the recovery of damages has been laid by the introduction of evidence tending to show the earning capacity of the deceased, or the existence of persons who were dependent upon him for support. 17 Corpus Juris, § 258, pages 1365-1366.” It italicizes the following words: “Where the law presumes a pecuniary loss to the beneficiaries, substantial damages, it is said, may be recovered without proof of special pecuniary loss.” But it does not emphasize the next sentence, to wit: *435 “But the general rule is that in order to authorise a recovery of damages for death by wrongful act, the evidence must show the extent and amount thereof, or furnish facts and data as a basis from which the jury may approximate the proper amount with reasonable certainty It is because this general rule was ignored in the trial of the present case, on Circuit, that I am constrained to dissent from the conclusions announced in the main opinion. There was no particle of evidence to show the extent or amount of the pecuniary loss or damage sustained by the beneficiaries of the deceased. It is left to whim or caprice of the jury, without any definite instruction thereabout by the Court. If the charge of the Circuit Judge on the subject be approved by this Court as the correct definition of the measure of damages in such cases, then in the future, in this jurisdiction, juries may, upon proof alone of the relationship of the deceased and the beneficiaries, award any sum they please within the limit of the amount demanded in the complaint. It would seem useless to stress the fact that the question of contributory negligence has been passed over without proper consideration. Under the decisions of this Court, the failure to give the statutory signals is some evidence of willfulness and wantonness. . The trial Judge submitted the cause to the jury only on the question of actual damages. We must therefore conclude one of two things: Either the Judge thereby held that no other reasonable inference could be deduced from the evidence than that the statutory signals were given, or that the failure to give the statutory signals was no evidence of willfulness and wantonness, and was simply negligence. There being no appeal by the respondent from this holding, it becomes the law of this case. Therefore, if plaintiff’s intestate or his agent, the driver of the truck, was also negligent, and his negligence contributed to the injury as a proximate cause, there can *436 be no recovery. No other reasonable deduction can be made from the evidence than that the driver of the truck and the deceased failed to use the slightest care for their own safety, and that if they had used the slightest care, they were bound to have known that they were approaching a railroad crossing. The evidence shows conclusively that for a distance of at least fifty feet before reaching the railroad track, if either the driver or plaintiff’s intestate had merely looked they could not have failed to see the approaching train. The evidence. also shows that at the rate of speed at which it is testified they were traveling, the truck could have been stopped before entering upon the railroad track, and yet plaintiff’s own testimony shows that there was no attempt to stop the truck by the application of brakes until the moment of the crash. Mr. Justice BakEr concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3884224. Public record. Not legal advice.