manifestly dangerous, any other way was closed to Nelson. And the fact that Dietert occupied the same physical attitude that Nelson did, and barely escaped the fate which befell Nelson, and had the same sources of information that Nelson had, is evidence that neither party had any reason to anticipate the event which did happen.

9. We come now to consider the issue hereinbefore adverted to, and that is: Why did the engine move? It did move. Nevertheless there would be no warrant in law to conclude that from the isolated movement of the engine the master was negligent; there must be other testimony to prove a lack of care.

The appellant contends that the plaintiff has framed a mere theory unsupported by testimony, that the movement of the engine was caused, not by steam turned in from the boiler through the valves, but from vacuum which op14 erated unevenly on the piston, and which caused the engine to do what the witnesses called "turn over;" that is, caused the piston to move, and thus to start the sixfoot cogwheel. There was abundant testimony by three expert witnesses that vacuum commonly caused an engine to turn over. It is true that was denied by the defendant's witnesses; but the testimony made the issue one for the jury. Leaving theory and the testimony of experts, the jury had the testimony of Lingreen and Joe Nelson, who stood by the engine at the instant of its movement, and of Axe, the leverman, who stood in the lever house above deck. The witness, Lingreen, for the defendant, testified: "I just cracked (the valve) a quarter of a turn." The witness, Joe Nelson, testified no steam was let on, and yet the engine "turned over." The witness, Axe, testified the engine did not run, and yet the same "turned over." The witness, Beuttenmuller, a civil engineer on the dredge, testified that shortly after the accident Lingreen declared that he had not turned on the steam. Peter Axe, the leverman on the dredge, testified to the same thing. Of course, Lingreen

Opinion of the Court.

[ 107 S. C. denied any such declaration; but this testimony, and that of Joe Nelson, and that of the experts made a sharp question for the jury. And there was testimony that this same cutter engine had aforetime turned over at Savannah; but that was denied.

10. The testimony was not nearly so strong or so conclusive which went to prove that a turning over of the engine by the force of vacuum was of sufficient force to turn the six-foot cogwheel far enough around to cause the injury in the instant case. Yet there was testimony which went to that extent; and the Court would not have been warranted to direct the jury to the contrary, or to say that there was no testimony sufficient to sustain a reasonable conclusion that the cogwheel was moved to do its work by the sole agency of force of vacuum operating on the engine. The expert testimony of the defendant strongly negatived such a conclusion, and it may well be doubted; but if the fact be concluded that the engine did turn over without the cracking of the steam valve, and the testimony tends to that conclusion, and if the fact be that the cogwheel did hard thereupon crush the leg of Nelson, and the testimony tends to that conclusion, then the physical fact rebuts the theory of the defendant's witnesses. Axe testified the big cogwheel moved two feet around. Others testified it moved a foot and a half. Lingreen testified that he had barely cracked the valve so that only a small pressure of steam could go in, and yet that small amount of steam moved the machinery, if Lingreen is to be believed.

11. Concluding then that there was testimony tending to prove that engine did turn over by the force of vacuum, and that such turning forced the cogwheel to revolve, the testimony must go one step further, and tend to show that such turning over was the result of the defendant's lack of care to prevent it.

If it be true, and there was full testimony to that conclusion, that an engine of the character of this one was

liable to turn over, and that was known to, or ought to have been known to, the defendant, and that this special 15 engine had aforetime turned over, then it was the duty of the owners to guard against such an event. The device relied upon by the appellant to accomplish this end was the use of three valves, the closing of any one of which would effect the same end as a lock on the engine; that is to say, to prevent the steam from operating. But that device was of so doubtful a character and by its nature of so uncertain operation that the jury may have concluded the three valves were constructed with no such end in view. It may be that it was not practicable to put on the cutter engine a device to lock it like that on the larger engine.

12. Now the appellant suggests if a locking device was needed it was the duty of Philip Nelson to provide it and all safe appliances for the machinery. But plainly that is

not so. Nelson was an executive officer, and not a 16 constructive engineer. On the day of the accident

there were present on the dredge two trained mechanicians. No matter what office they held or what office Nelson held they were the masters that day and always. Nelson was untrained in the books, a plain working man, of character and some skill, it is true, but not a mechanical engineer. Gaylord and Dietert were present to inspect and to repair defects in machinery; the whole plan of the dredge was theirs. The cutter engine even was not subject to Nelson's direction; for it is in evidence that when Nelson, on the very morning of the accident, asked Lingreen, the first assistant engineer, to look the cutter engine over, Lingreen told him he (Nelson) had to see the chief engineer (Henderson) first about it, and Nelson came back and told Lingreen it was all right to do what was necessary to the cutter engine.

13. We now come to the contention of the defendant that any negligence which led to the event lay at the door of Lingreen, Joe Nelson, or Axe, all fellow servants with

Opinion of the Court.

[ 107 S. C. Philip Nelson. The testimony does not certainly fix on Axe any failure to perform his duty at that instant. It is true he was in the lever house at the instant of the accident, and it is true the valve there was open, but it does not appear he then had knowledge of the plight of the two valves in the cutter engine room. Touching the negligence of Lingreen and Joe Nelson, the defendant might well say that, if they started the cutter engine the second time, against such an act, if negligent, the intestate had contracted. But the plaintiff's whole case is against a movement of the cutter engine by steam, and makes for a movement of it by vacuum; and that theory excludes the intervention of human agency. In a nutshell, the plaintiff's whole contention is that the cutter engine started from the operation of mechanical causes which ought to have been foreseen and guarded against.

14. The final issue rests upon the refusal of the Court to charge the defendant's nineteenth request. The postulate of that request is :

17

"The plaintiff has failed to adduce any evidence tending to prove her right to punitive or exemplary damages, and the jury cannot allow or consider such damages.

The appellant's counsel argued :

"That, although the jury found for the plaintiff no punitive damages as such, the refusal of the Court to instruct them as requested was calculated to influence the jury to find the amount which they found as actual damages."

We think the jury could not have misunderstood the Court's instructions; and in view of the instructions presently to be set out we think the jury meant to say that the sum found represented the value of the life of Philip Nelson, and did not express any punishment to be inflicted on the defendant. This view is strengthened by the defendant's praiseworthy testimony to the high character and useful life of the deceased. The Court instructed the jury:

"Now, gentlemen, if you find the plaintiff is entitled to recover actual damages, and also punitive damages, you will let your verdict speak what you mean, what kind of damages you mean that she is entitled to recover, whether actual damages or punitive damages. Actual damages are compensatory damages; punitive damages have nothing to do with compensation; punitive damages are allowed by way of punishment to the wrongdoer, and also as an example to others. So if you find that the plaintiff is entitled to recover the form of your verdict will be, We find for the plaintiff so many dollars, writing it out in words, and not in figures, actual damages, and if you find that she is entitled also to punitive damages, you will say, and so much, writing it out in words, and not in figures, punitive damages; that is to say, if you find for the plaintiff, let your verdict speak what kind of damages you mean to find, and if you find both kinds of damages, you will name the amount of each." Our conclusion is there was no harmful error made by the trial Court, and the judgment of that Court is affirmed.

9621

FOWLER v. NEW YORK LIFE INS. CO.

(91 S. E. 1043.)

1. EVIDENCE OPINIONS - TRUTH OF APPLICATION FOR INSURANCE.-In action on a life policy, it was improper to permit cross-examination by plaintiff as to whether insured told the truth when he answered questions in the application.

2. APPEAL AND ERROR-HARMLESS ERROR-ADMISSION OF EVIDENCE.-The error of permitting cross-examination by plaintiff as to whether insured truthfully answered questions in application was rendered harmless where one witness did not answer, and the other only "reckoned."

3. INSURANCE-ACTION ON LIFE POLICY-INSTRUCTIONS.-There was no error in charging jury that gist of defense in action on life policy was that insured was addicted to excessive use of liquor; "not that he did not totally abstain from its use, else few people could obtain effective insurance," total abstinence not being in issue, the language at most being irrelevant.