84 W. Va. 120 | W. Va. | 1919
The defendant railroad company, by this writ of error, seeks reversal of a judgment in favor of the plaintiff for damages for an injury received by him while a passenger on one of its trains.
The plaintiff became a passenger on one of defendant company’s trains at its station at Burnsville, his destination being another station named Arnold, in the county of Lewis. ' He states that when he got on the train at Burnsville he went into a ear ir. whieh there were no passengers, and that when the next station was reached, while the train was stopped'at that point, he removed to the next car to the rear, and placed his handbag or suitcase in the front seat of that car, and seated himself in the fourth or fifth seat from the front. Just before the arrival of the train at Arnold he says that one of the employes of the company in charge of the train an
At the trial of the case the plaintiff tendered and asked leave to file a bill of particulars, in which he set forth the items for which he claimed damages, and the amount of each item. These items were all set out in the declaration, but the amount claimed on account of each of e them was not therein
The principal contention of the defendant is that the circuit court should have directed a verdict in its favor. It contends that its evidence so clearly preponderated over that offered by the plaintiff, as to the manner in which the injury
It is not seriously contended by the defendant that the plaintiff would nut be entitled to recover in this case if he A’/as injured in the manner indicated by his testimony, and as found 1-y the jury. It is the duty of a carrier of pa--.scm.mrs to exercise the highest degree of care for the safety of those t UAelling on its trains, and the performance of ^his duty requires that such trains shall be stopped at stations where passengers are to alight a sufficient time to allow them to do so in safety, and that while so stopped for such purpose they shall not be moAed or handled in such manner as to causé injury to a passenger alighting therefrom. If it is shoAvn that a passenger attempts to alight from a train after it is slopped, and after the carrier’s ageht has notified passengers to alight by announcing the station, and he is injured by any sudden movement of the train Avhile so alighting, the carrier .will be liable in damages for such injury, unless it explains such movement and clearly attributes it to some cause over which it had no control. In this case no such attempt Avas made. The,only defense set up was to deny that
The action of the court in refusing to give a certain instruction asked by the defendant is also relied upon for reversal. This instruction told the jury that where the burden is on a party to prove a material fact in issue, failure to produce an important and necessary witness to such fact raises the presumption that such witness’s testimony, if introduced. would be adverse to the contentions of said party. This instruction does not. correctly state the proposition of law which it attempts to present. In order for this presumption to exist against a partj it must appear that he is able to produce, and has some control, by reason of his situation or relation, over the witness whose testimonj' would clear up the situation, ¡áuch was the case in Vandevort v. Fouse, 52 W. Va. 214, and Union Trust Co. v. McClellan, 40 W. Va. 405. In this case it does not appear that the plaintiff did not introduce all the witnesses he could secure. It is not indicated that there was any other witness to this aceident available to the plaintiff, or known to him. Even though the instruction did correctly state the proposition of law, it is fully
We conclude that there is no error in the judgment complained of. and the same is affirmed.
Affirmed.