85 W. Va. 434 | W. Va. | 1920
This is tbe second writ of error awarded in this case. A review of it on the former writ of error is reported in 81 W. Va. 631, and the principles therein decided settle nearly all the questions here presented. Plaintiff’s evidence is not materially different on the second trial from what it was on the first, and although the defendant has introduced some testimony in addition to what it presented before, it is only cumulative, and not decisive of the issues; hence it would not warrant the court to take from the jury, by the peremptory instruction, which was offered by defendant and refused by the court, the questions either of defendant’s negligence or plaintiff’s contributory negligence. In addition to the irreconcilable conflict in the testimony, the facts and cireums ranees, from which the alleged negligence of the defeory negligence of plaintiff must be determined, are such as to make them mixed questions of law and fact, and therefore proper for jury determination. Ewing v. Lanack Fuel Co., 65 W. Va. 726; Foley v. City of Huntington, 51 W. Va. 396; and 10 Ency. Dig. Va. and W. Va. Rep., p. 414. Plaintiff testified that he was sitting near the front end of the car when it stopped at Williamstown, the place of his destination, and as soon as the car stopped he picked up his suit case, raincoat and umbrella, started to the rear end of the car to alight; that when he got out on the platform and started down the steps he met a couple of ladies who were getting on the car, and backed out of their way to allow them to pass him; that as soon as they passed him he again started down the steps, and when he was near the bottom, perhaps on the step next to the bottom step, the car started with a jerk and threw him to the pavement and injured him. He does not say the car started with an unusual jerk, but that it started with the usual jerk peculiar to all electric cars on which he had traveled, that they all start with a jerk. He says he walked at his usual gait, “not so very fast
If plaintiff was so near the bottom of the steps when the car started and thought he would be subjected to greater danger by remaining there, than to try to step off, whether he was guilty of negligence in attempting to do so was a question for the jury, even according to defendant’s theory of the case rnat he voluntarily stepped off after the car was in motion.
The former opinion in this case, and the principles announced in Normile v. Traction Co., 57 W. Va., 132; and Harman v. Appalachian Power Co., supra, determine most of the questions presented.
The principal argument in brief of counsel for defendant is based on the refusal of the court to give a peremptory instruction for defendant, based on the ground, either that no negligence on the part of defendant is established, or that the verdict is contrary to the great weight of'the evidence, and these points we have disposed of. But defendant complains also of the giving of plaintiff’s instructions Nos. 1, 3, 7 and 8. The only objection urged against Nos. 1 and 3 is that they are abstract. We do not think this criticism is good, but even if it were, we can clearly see that the jury could not have been prejudiced by them. Numbers 7 and 8 are the same as plaintiff’s Nos. 2 and
The refusal of the court to give defendant’s instructions Nos. 3, 1, 8, 9, 10, 11 and 14 is also assigned as error. All of them are fully covered by others which were given, except No. 9, and it was properly refused because it would have been confusing and misleading. It would have told the jury that, if they believed the conductor waited at the rear steps a reasonable time, until some passengers had gotten off and others had gotten on, and “until no other passenger was apparently attempting to get off or board said car,” he had the right, and it was his duty, to leave the car, and go forward to the Baltimore and Ohio Ry. Company’s tracks, and see that the way was clear and “there was no negligence on the part of the conductor under such facts and circumstances in leaving the car.” This instruction would lay too much emphasis upon a single uncontrolling fact and thereby confuse the jury as to the main issue. The conductor may not have been negligent in leaving the car, even if he left before any of the passengers had gotten off or on it. The negligence consisted not in leaving the car, but in signaling it to start before plaintiff had a reasonable time to alight.,
The refusal of the court to admit as evidence photographic copies of .three affidavits, certified by the Commissioner of Pensions as being photostats of originals filed in his office, by plaintiff when he applied for a pension on account of alleged disabilities resulting from military service in the Civil War is complained of. They were offered to contradict plaintiff’s testi-
For the foregoing reasons the court properly overruled defendant’s motion to set aside the verdict and grant it a new trial, and we affirm the judgment.
Affirmed.