82 W. Va. 123 | W. Va. | 1918
Plaintiff in error was plaintiff below in an action brought by him against defendant for personal injuries alleged to have
The action was founded upon the Federal Employers Liability Act of Congress, Fed. St. Anno., 1909 Suppl., section 1, page 584, and the judgment complained of, pronounced upon defendant’s motion, set aside the verdict in favor of plaintiff for $30,000.00, and awarded the defendant a new' trial.
The issues involved on the trial and disposed of by the various rulings of the court in the admission and rejection of evidence, the giving and refusing of instructions to the jury, and the motion of the defendant for a new trial awarded, are as follows: (1) Was plaintiff, at the time of his injuries engaged with defendant in interstate commerce? (2) Was he at the same time an employee in the service of the company, and not a passenger or trespasser? (3) Was there any proof of negligence rendering defendant answerable in damages? (4) Were the damages found by the jury excessive?
Plaintiff in support of the errors assigned for reversal affirms the first three propositions, and negatives the fourth, while the defendant, of course, -would negative issues one, two, and three, and affirm the fourth.
On the first question the evidence shows that plaintiff was an electrical engineer, employed by defendant with others to instruct its motormen how to operate its electric motors over that part of its railway, then recently electrified, between Bluestone Junction and Vivian, West Virginia, stat-tions on defendant’s road on the western slope of the Flat Top Mountain. His headquarters were at the City of Blue-field, east of Bluestone Junction, and where he made his reports to the train dispatcher of that division, and also received his orders, but his time and pay began and ended at Bluestone Junction. He did not always get upon the motors at Bluestone Junction; but was required to get them wherever they might be in service, and to do this as well as to reach headquarters he was obliged to ride passenger or freight trains as occasion might require, and was provided with passes -for this purpose. • These motors were employed as pushers in helping the steam engines with their loads of coal
' On the second question the facts are these: On April 2, 1915, just before he was injured, plaintiff had left the motor he had been riding that day at North Fork about nine or nine thirty o’clock in the evening, but his duties and time and pay did not end until he had made his way back to Blue-stone Junction. He was required to report for orders the following morning at Bluefield. To enable him to do this, Peters, the trainmaster at North Fork, at the request of Quinn, then engaged in testing the side rod equipment on Motor No. 2507, now Chief Electrical Engineer, with headquarters at Roanoke, Virginia, in the presence of plaintiff, called up Snidow, then assistant yard master at Eckman, a station west of North Fork, and directed him to order eastbound freight No. 84, designated “First 84’’, as plaintiff swears, “to pick him up. at North Fork”, and plaintiff also swears that immediately after so phoning Snidow, Peters turned to him and said, “You wait here and 84 will slow down for you.” Plaintiff also swore, and there is little or no evidence to the contrary, that he and other trainmen were frequently required in the discharge of their duties to jump or board moving trains, and that his orders when caught out on a trip were to get back the best way he could. . He says he could have gone back to Bluestone Junction on the motor he was riding that day, but could not have reached headquarters that night, unless he got No. 84 at that point or at Morgan, a small station west of Bluestone Junction, where No. 84 usually took water, but that when he asked Peters what he should do, Peters said “You. stay right here and I will ’phone Eckman and have.84 pick you up.” Plaintiff did as directed, and waited at North Fork until No. 84 came along
The only substantial conflict in the evidence is whether the order to “First 84’.’ was,to “slow down” and pick up plaintiff, as he swears, or to “ stop ’ ’ and pick him up, as Refers and Snidow swears. Garrett, the engineer on No,,84, admits that he received the ■ order, and that it was read to him, and that he put it in his pocket, but professes that when he reached Blueflcld and there learned of plaintiff’s injuries he looked or felt in his pocket for the message,. but could not find it. Snidow and his clerk to whom he dictated the message swear no record of the message was kept, although it was signed TI. C. Weller, Superintendent, and neither the original nor a copy of the message was produced on the trial.
There is no question that -when actually employed on the motors the day of his injuries, plaintiff was assisting in hauling interstate trains; nor is it controverted that the train doing him the injury was an interstate train. Nor is it controverted that his employment required him to have his headquarters and report at Blueflcld; nor that his time and pay, unless otherwise ordered, began and ended at Bluestone Junction.' He spent the night of April 1, at North Fork, but this was upon special, order of his superior,, and at his or the • railway company’s expense. He had no such order for the night of April 2nd,-, font in trying,to make,,his way,back to Bluestone Junction and to headquarters he was acting under
But to render defendant liable it must have been guilty of negligence within the meaning of the federal statute, and defendant’s counsel argue that its negligence must have been the proximate cause of the injury and not the contributory negligence of the plaintiff. But for the statute contributory/ negligence would defeat recovery, but section 3 of that statute», says, “contributory negligence shall not bar a recovery,• but. the damages shall be diminished by the jury in proportion to» the amount of negligence attributable to such employe, * *’ * * etc. The authorities say that an employee assumes; ■all the ordinary risks of his employment, and can hot recover-
-..-•'That defendant was negligent on the night of April 2, 1-915, '.•'there c.an be no- doubt. The engineer 'received his order,- but meglected to obey it. Plaintiff admits he assumed the dfdin-.-áry risks incident to his employment, including that'of get--ling aboard -moving trains, when required, as it appears rail’.way trainmen are at times required to do. He swears that ' -on the night in question his judgment was that at the instant rhe undertook to get aboard-'the train it had slowed dinim' to a -.speed not exceeding twelve miles per hour, and that it was reasonably safe for him to attempt to get aboard, and that he safely mounted the car selected by him, and would have '.succeeded in getting to a place of safety, but for the subsequent negligence of the engineer in causing the sudden .jerking of the train, and the breaking of his hold upon the ■car and throwing him under the train. True some of the witnesses say the train did not stop or .slow down, and was running at the rate of from fifteen to twenty miles per hour; but the engineer had orders to stop or slow down; according ■to the evidence he did neither,- and was therefore negligent in .that-duty. But plaintiff had the right to assume the train . would. stop or slow down to. enable him to. get -aboard;, he thought at the. time, it had slowed down; the facts involved , were- for .the jury, who. by their verdict must hgve. decided .them according.to the. contention of the pllain1thfl;,-.,l'he:,f9.hts
Lastly, was the verdict excessive?, Dumphy was thirty qne .years of age, educated for his particular-.profession, or calling, that of an electrical engineer; he was then earning $1500.00 per year; his life expectancy was thirty, six years. No- swears he has tried in vain to get employment, on account of his physical disabilities, the result of his injuries. ; He suffered great mental and physical pain, and is rendered, a cripple for life, and unfitted for his profession. . It is argued that $30,000.00, the amount of the verdict, at 6% would produce $1800.00 per annum, $300.00 more than he-was earning when injured; but this theory allows npthing for taxes, lqss of time, expenses, and the uncertainty of keeping the money invested af the rate of 6%. We think that 4% net would be as much as one of. ordinary financial ability could reasonably expect to realize upon his investments. Few persons do that well .during a long period of time. Approved annuity tables say that the value of one dollar at 4% for a person of the age of 31 years is 17.5885, and to purchase annuity of $1500.00, for pne of that age, would require 1500 times 17,5885, or. $26,-382.75. Giaiique and McClure, Dower and'Cprtesy Tables, p. 196-7. The difference between this sum and the amount ,of the verdict would not be an unreasonable, allowance for the posts and. expenses in obtaining a cure. and for mental and physical, pain,,sirffered, and which, plaintiff, will, likqly-c,qp.- " .
The elements generally allowed to enter into the amount of damages found for personal injuries are, in case of total or partial disability caused thereby, the character of the employment, the earning powers of the employee, his age, and previous physical health and condition, and often his prospects for future advancement in his trade or calling have been allowed to influence verdicts. The Supreme Court of the United States in cases arising under the federal act have declined to deal with the question of mere excess of damages, even where the action is for the death of a'servant, and the right of recovery is limited to pecuniary loss of the beneficiaries, holding that it does not present a question for re-examination upon writ of error to that court. Southern Ry. Co. v. Bennett, 233 U. S. 80. But our practice is different. We máy in cases brought here by writ of error review judgments on the question of damages, and affirm or reverse on this ground. Our decisions contain many examples of the prae-tice which are familiar to the profession and need not be cited. And such we think is the general rule of practice in other states.
The best and most approved method of determining the quantum of damages, perhaps, is the probable pecuniary loss sustained with something ádded for. mental and physical pain
Of course there.is a great variety of opinion 'among the courts on. this subject, ■ but until Congress shall • limit the amount of recovery in such cases we do not see how we can invade the province of the jury and take away.from them the right to fix the amount of damages, unless upon some one or more of the grounds referred to.
Two points not covered, by what has already been said should not perhaps be overlooked. First, it is complained that the court erroneously sustained the objection of plaintiff to certain question propounded the witnesses Garrett and Maston. A sufficient answer is that there was no proffer showing what the answers would have been.
Another point is that the court erroneously declined to permit defendant’s counsel to ask plaintiff whether he had not given his counsel the facts on which the original declaration was predicated. The original declaration was that the yard master’s order was to stop and pick him up, instead of to slow down and pick him up. We think the ruling of the court was right on the principle announced in Bartley v. Western Maryland Ry. Co., 81 W. Va. 795, decided at the present term of the court, point 7 of the syllabus.
Our conclusion is to reverse the judgment, reinstate the verdict and to pronounce the judgment thereon in favor of plaintiff which we think, the trial court should have given, with costs in this court and also in the circuit court by him expended.
Reversed; verdict and judgment for plaintiff.