Defendant by writ of error seeks reversal of the judgment below against it for five thousand dollars, damages for injuries alleged to have been sustained by plaintiff while a passenger, at West Hamlin, in Lincoln county, on the night of September 24, 1907.
The first point of error is the overruling of the demurrer to the amended declaration and to each count thereof. This declaration contains two counts. The second count, among 'other things, avers the duty and the breaсh thereof by defendant to stop its train at its said station, on the night in question, a reasonable length of time to enable plaintiff to get aboard and to reach a place of safety. This count is concededly good, but it is insisted that the first count, which omits this averment, but which avers other duties of defendant to plaintiff, and the willful, wanton, reckless, and negligent disregard thereof, resulting in the injuries eonqilained of, is nevertheless fatally bad, demanding reversal of the judgment and that a new trial should be awarded.
The law on this subject, however, is that if the good count and the evidence thereunder, be' sufficient to sustain the verdict and judgment, the error, if any, in not, on demurrer, suppressing the bad count, will be disregarded by an appellate court, if it clearly appears that the action of the court on the bad count and the evidence, if any, admitted thereunder, has not resulted in an excessive verdict, or that the defendant hаs not been otherwise prejudiced thereby, this upon the same principle that where there is but one count, 'which contains good and bad matter, and a general demurrer thereto is properly overruled, the bad will not after verdict vitiate the good, unless prejudice due to the bad matter and evidence thereunder has resulted to the defendant. Robrecht v. Marling,
But is the first count bad for omitting the alleged primary and paramount averment? It avers facts sufficient to establish the relationship of passenger and carrier; the duty of defendant thereafter to use all due and proper care, caution, skill and dili-igence in and about the operation and movement of its locomotives, engines, cars, coaches. and trains and so forth, so as to
To sustain this proposition Snyder v. Wheeling Electrical Co.,
But even if the count be bad, we can plainly see, the second count being concededly good, that defendant was not prejudiced by the action of the court on the first count, and that the judgment ought not to be reversed for any error therein. No evidence was admitted under the first count, not admissible under the second, and nothing could have been added by way of damages under the first count not рrovable under the second count, wherefore defendant could not have been prejudiced.
The next point is that the court erroneously permitted plaintiff to withdraw a juror, and on a non-suit suffered, but set aside the same day on her motion, to amend her declaration by striking out of the first count the words,' “State of West Virginia,” descriptive of the corporation sued, leaving the corporate name as described in the writ executed upоn the defendant company, and as described in the second count, Chesapeake and Ohio Railway Compapy, a corporation. It is insisted that although the 'Chesapeake & Ohio Railway Company, a corporation under the laws of the State of Virginia, was in fact the corporation sued, and intended to be sued, and the one served with process, the error of description in the first count, committed plaintiff to the West Virginia cоrporation, and that she could not of right amend her declaration, as she was permitted -to do, without suffering the consequences of a new suit .brought as of the date of the filing of the amended declaration, and to which the statute of limitations interposed by the defendant, the Virginia corporation, could be properly pleaded; also that the amendment permitted was equivalent to stating a new cause of action to which the statute of. limitation might also be properly applied. The evidence relied on by defendant in the court below in support of its motion to strike out the amended declaration, shows, we think, that neither the words “State of West Virginia,” stricken out, nor the words “State of Virginia” constitute any part or parts of the corporate names of either of these corporations. . Bach corporation has the same corporate name, the one sued being organized under the laws of Virginia, the other under the laws of West Virginia, the latter not being the owner or operator of the railroad at the time plaintiff is alleged to have sustained her injuries. If we should treat the words “State of West Virginia” as part of the
The other argument based on the theory of a new cause of action introduced by the amendment is, in our opinion, wholly untenable. The cause of action is the same in both pleadings. Defendant knew it was the corporation sued, intended to be sued, and described in the writ, and that it was prоperly served with this 'writ. It is true perhaps, as a general rule, as decided in the eases cited, that the introduction by way of amendment of a new and distinct cause of action, will not prevent the running of the statute of limitations, except from the date.of such amendment; but we have no such case here. This is not a case where by amendment a different party has been substituted for the defendant actually sued; but one in which the name of the party aсtually sued and served with process has been corrected. Such a case is clearly within our statute, and the decisions cited, and within the rule of Mill Co. v. Hobdy, (Ala)
But 'was a new cause of action begun by the amendment and non-suit suffered and set aside, to which the statute of limitations could properly be .applied? In affirmance of this proposition, counsel rely on the Virginia cases of Manuel v. N. & W. Ry. Co., (Va.)
But why need we further pursue this question? Our statute, section 12, chapter 127, Code 1906, originating with chapter 132, Acts 1868, unlike any statute of Virginia,, specifically provides, that all causes in which orders of dismissal or orders of non-suit have been set aside, and the same re-instated,“shall remain upon the docket, and be proceeded with in the same manner as if the order had never beеn made.” True this statute says “in the same mannerbut rightly interpreted it clearly means with all the rights preserved the same as if a non-suit had never been suffered. The statute is remedial, and is entitled, under well known canons, to liberal construction, and read in the light of section 19, chapter 104, Code 1906, another remedial statute, it should be given the construction indicated.
The next point is that over the defendant’s objection, the court below admitted improper evidence. This point is made with respect to the 'whole of the evidence o£ Doctors Solter and Turner, motion to exclude which it is claimed was overruled. If such motion was ever made we have been unable to find it in the record. Attention is not directed to any particular portion or portions of this evidence which in'the judgment of counsel ought to ha.ve been excluded. The generality of the objection cloes not require us to give it cоnsideration. But counsel say that the motion to exclude, which we fail to find in the record, should have been sustained on the rules and principles of C. & O. Ry Co. v. Wiley,
Next, it is said that the evidence of the plaintiff is overborne and buried under the preponderating evidence of the defendant, and that on this ground, notwithstanding the conflict, the court below, as proposed by defendant’s instruction number 1, should have directed a verdict for it, and after verdict should have set the same aside on its motion to award a new trial. This point is directed to two distinct portions of the evidence: First, it is claimed that the evidence of plaintiff’s witnesses, doctors Turner and Solter, relatng to the nature of plaintiff’s injuries, the causes, and results, and particularly their opinion, at the time of the trial,'that she was suffering from locomotor ataxia, was completely demolished and overridden by the evidence of some six other physicians, most, if not all, of them employees of the defendant, and who had never treated plaintiff, or made any physical examination of her or her injuries, but gave it as their opinion, based on the evidence of the plaintiff’s witnesses, and what they had seen of plaintiff at the trial, that she was not then suffering from locomotor ataxia. We are unable to agree with counsel. True there is conflict, but it was for the jury, and not for the court to judge of its weight and credibility ; the number of witnesses is not controling. Defendant’s witnesses, as they admit, had never had the opportunity to examine or treat plaintiff, as plaintiff’s witnesses had done, and they did not attempt to speak'-with the same personal knowledge or accuracy аs doctors Turner and Sol-ter.
The other class of evidence to which counsel would apply their
Next, as to the evidence relating to the rеasonableness of the stop, and that relating to contributory negligence. It is insisted that this case is clearly controlled by Hoylman v. Kanawha & Michigan Ry. Co.,
Most, if not all, the cases cited and relied on by counsel for defendаnt, were actions for damages sustained by passengers while alighting from trains in motion, after reasonable stops made, where, as in our case of Hoylman v. Railway Co., supra, the rule is, that the carrier will not be liable unless the circumstances indicate or cause the trainmen to suspect, in the exercise of reasonable diligence, that a passenger has not reached a place of safety, so as to be in danger if the train is started. The rule perhaрs would not be different, as indicated in the Hoylman Case, in actions for damages for injuries sustained while attempting to get on moving trains. The rule is clearly stated in 5 Am. & Eng. Ency. Law, 578, one of the authorities cited and relied upon by defendant’s counsel, as follows: “It is universally held to be negligence for the conductor or other servant of a railroad company to start a train while passengers are obviously in the act of getting on the train or alighting therefrom.” The numerous decisions cited in the footnotes fully support the text. One of them, Texas & P. Ry. Co. v. Gardner, 114 Fed. Rep. 186, holds, that it is negligence to start a railroad train from a station, while a passenger is actually getting on board, regardless of the length of the stop. And in Kulman v. Erie R. Co., (N. J.)
Another point is that the court improperly rejected defendant’s instructions numbers 5 and 8. These instructions are based upon the theory that the plaintiff attempted to board the train while it was in motion. There is little evidence to support this theory. The evidence clearly shows that the entire family of the plaintiff was in the act of boarding the train at one and the same time, the husband preceding the wife, she following him in close succession. But conceding that' defendant was entitled to instructions upon this theory, the law applicable to the facts in the case was fully covered by other instructions given on its behalf and there is no error.
Lastly, it is claimed that the court erred in refusing to set aside the verdict on the ground of newly discovered evidence. The motion of the defendant to set aside the verdict on this ground, was supported by the affidavits of two women to the effect, that in December, 1907, following the accident, plaintiff had admitted to them, that she had not been seriously injured, but that upon the advice of counsel she had concluded to simulate injuries, for the purposes of this suit. These witnesses are directly contradicted by affidavits of the plaintiff and her husband, corroborated by the affidavit of her counsel. The court below overruled the motion. We are only called upon here to say whether the court below abused its discretion. We cannot say so; and not being able to see that there was it is our duty to overrule the point. 29 Cyc. 904; Trimble v. Tantlinger,
Rinding no substantial error the judgment must be affirmed.
Affirmed.