42 W. Va. 183 | W. Va. | 1896
Lead Opinion
This case was before the Court in the year 1894. It was submitted on the 22d day of January, and decided on the 11th day of April in that year; being then reversed, the verdict set aside, and a new trial awarded the defendant. 39 W. Va. 366 (19 S. E. 578).
The action was brought on the 29th day of August, 1891, in the Circuit Court of Lewis county, by John H. Eisher, suing by his next friend, John 8. Eisher, to recover damages from the West Virginia & Pittsburg Railroad Company for personal injuries alleged to have been received by the plaintiff by reason of his being allowed by the conductor of the train, while being carried as a passenger on the train, to ride on the platform of the car in an intoxicated condition, and, in consequence of the negligent conduct of the conductor in allowing him to remain on said platform, he was thrown from the platform or steps of the car, and had his feet crushed by the wheels of the car. The case was again tried before R. G. Linn, special judge; and on the 13th day of March, 1895, the case was again submitted to a jury, and, after the evidence of the plaintiff had been fully introduced and heard in chief, the defendant moved to exclude the plaintiff’s evidence from the jury, which motion was overruled. The defendant then introduced its evidence, and a verdict was rendered for the plaintiff for five thousand dollars. The defendant thereupon moved to set aside said verdict, because the same was without and contrary to the evidence, was against and contrary to the instructions of the court to the jury, was excessive, and for other errors of law, and to grant it a new trial, which motion was overruled, and the defendant excepted, and took a bill of exceptions, setting forth the evidence heard by the jury. The court rendered judgment upon the verdict, and the defendant applied for and obtained this writ of error.
The first error, relied on by the plaintiff in error is claimed to consist in the action of the court in refusing to strike out the plaintiff’s evidence, the same failing wholly to sustain the plaintiff’s action. The plaintiff in error, however, after making its motion to strike out the plaintiff’s evidence, proceeded to introduce its own testimony, and this Court held in the case of Core v. Railroad Co., 38 W. Va. 456 (18 S. E. 596) that “if the defendant, after the court has overruled its motion to exclude the plaintiff’s evidence on the ground of insufficiency, proceeds with its defence, and introduces its evidence, this Court will disregard such motion, and will not reverse the judgment, unless it appears that the whole evidence is insufficient to justify the verdict of the jury.” And the same, in substance, has been held in other cases by this Court, and for this reason we must regard this assignment as not well taken.
Now, as to the conversation detailed by Mrs. Brannon as having occurred between her and the conductor when she was on the train, as she says, two or three days, perhaps the next day, after; can the admission made to her by the conductor on that occasion bind the defendant. She states that the conductor said it was his duty to have compelled him to go in, or stop the train, and put him off. He said “it was against the rules for any one to ride there, and said he neverhated anythingso much in his life; that heknew hehad not done his duty.” As to declarations and admissions made by an agent, 1 Greenl. Ev. § 113, says: “A kindred principle governs in regard to the declaration of agents. The principal constitutes the agent his representative in the transaction of certain business. Whatever, therefore, the agent does in the lawful prosecution of that business is the act of the principal whom he represents; and, where the acts of the agent will bind the principal, there his representations, declarations, and admissions respecting the subject matter will also bind him, if made at the same time and constituting part of the res gestee. * * * The party’s own admissions, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act, and part of the res gestae, that it is admissable at all.” See Railroad Co. v. Gallahue’s Adm’rs, 12 Gratt. 655 (eighth point of syllabus). The same witness says that “plaintiff came to Weston on Saturday, and I knew he was drinking. He was a young boy, away
Proceeding to apply the law to these facts in this case, let us inquire first whether the intoxicated condition of this unfortunate young man should excuse his negligent conduct, and entitle him to a recovery in this case. In the case of Smith v. Railroad Co., decided by the supreme court of North Carolina May 9, 1894, and reported in 19 S. E. 863, Shepherd, C. J., delivering the opinion of the court, says: “We are also of opinion that there was error in ignoring that universally established principle in the law of contributory negligence which imposes upon one who has voluntarily disabled himself by reason of intoxication the same degree of care and prudence which is required of a sober person. This is so well established that it would seem unnecessary to cite authority in its support.” Patterson, in'
But if we were warranted in saying, in view of the testimony in this case, that the plaintiff'was not under the influence of .liquor, was his conduct after taking passage on this train consistent with the dictates of care and common prudence, or should it be characterized as negligent? He refused, in response to repeated requests of the conductor, and with the notice on the door before him, to go into the passenger car. Although, it is shown, there was plenty of room, yet he persisted in remaining on the platform. And what does the law say of such conduct on the part of a pas-
It appears from the testimony that at the time the plaintiff received the injury complained of, the defendant had no rule requiring the conductor to stop the train and put a passenger off, if he persisted in riding on the platform, and
The instructions asked for by the defendant were given to the jury, and read as follows, the court, however, modifying the last instruction, D, and refusing to give instruction 6, which action appears to have been excepted to: Instruction No. 1: “The jury are now instructed that the plaintiff, as passenger on the defendant’s car, as a matter of law, is presumed to have taken upon himself all the risk necessarily incident to that mode of traveling; and if the jury believe from the evidence that, without the fault of the defendant, but by inevitable accident, plaintiff’ was injured, the jury should find for the defendant.” Instruction No. 2: “The court instructs the jury, as a matter of law, that a passenger upon a railroad train takes all the risk attending that mode of travel, except such as may be caused or incurred by the negligence of thejailroad company or its servants, and, unless such negligence by the defendant is shown by the evidence, the jury should find for the defendant.” Instruction No. 8: “The court instructs the jury that, as a matter of law, a regulation of a railroad company ■which forbids passengei’s to stand upon the platform while the car is in motion is a reasonable and proper rule; and if a passenger, in violation of such regulation, unnecessarily exposes himself, he does so at his own peril.” Instruction No. 4: “If the jury believe from the evidence that both the
We regard these instructions as propounding the law correctly, and if the jury, in considering their verdict, did not utterly fail to apply the law therein stated to the facts proven, we can not see how they arrived at the conclusion they did. And we think the fourth assignment of error, that “the court erred by refusing to set aside the verdict as contrary to the instructions of the court, the same being in direct conflict with the said instructions,” was well taken, and the verdict of the jury should have been set aside, and a new trial awarded for that reason. Looking through the entire evidence in the case, our conclusion is that the proximate cause of the defendant’s injury was his own obstinate and perverse conduct in refusing to obey the reasonable re
For these reasons, the judgment complained of must be reversed, the verdict set aside, and a new trial awarded the defendant, with costs to the plaintiff'in error.
Dissenting Opinion
(dissenting):
This case has been before two juries, and each one found that the defendant did not, in carrying an intoxicated passenger, use such care to carry him safely and securely as the law of their contract and the exigencies of the occasion demanded. Three facts of some bearing in certain aspects of the case were brought out on this trial which did not appear on the first trial at all, or with the same distinctness and certainty: (1) On the first trial, the plaintiff'did not say that he was not notified by the conductor to get off the platform. On this trial he denies that the conductor made any such request;" and, as to the making any such request at the instance of plaintiff’s father, his denial is supported by the testimony of another witness. (2) On the first trial, the conductor, in his evidence, stated that it was a rule of his company, “if the passenger refused to leave the platform, the conductor should stop the train, and put him off', or make him go inside.” On this trial the defendant company proved by the same conductor that they had no such rule at that time, and had none such until the January following, that his statement on the first trial was an error. (3) On the first trial, the conductor testified that he had asked the plaintiff twice before that time (that time made the third time) to go in, and also one of the brakemen had tried to get him in. This time the conductor testified that Graves, one of the brakemen, insisted on the plaintiff’s going in; that they had several words about it, and came near getting into a racket. “In fact, I had to go to Graves, and tell him not to go too fast with him.” (4) The tenor of the rest of the testimony is very much the same, except that the fact is now brought out more distinctly that plaintiff’s rea
To prevent injury to a passenger, the common carrier is bound to the highest degree of skill, care, and diligence, and generally liable for the slightest negligence; and th
Although the general rule is that no man by his wrongful act can impose a duty on another, yet this does not apply where the efficient, direct, and sole proximate cause of the injury intervenes between the plaintiff’s state of negligence and the damage complained of. There is nothing remarkable about this case but the exceptional distinctness with which it exemplifies and makes the reason of this rule. Taking alone the evidence of the conductor, we have a case of the plaintiff in a state of negligence riding on the platform, unconscious of his incapacity to take care of himself, heedless of the danger of falling off. This goes on under the eyes of the conductor from the time plaintiff entered the train until he fell off. His drunkenness was obvious. He was drinking when he came on, and kept drinking as he rode. His recklessness of danger, his heedlessness of the probable consequences of such conduct, were equally obvious, and observed by the conductor; for he saw him standing on the steps, saw him down on the platform with one foot on the step. Pie requested him to come in, as he says, more than once, and always unavailingly. He saw the brakeman Graves insisting on his going in, who, no doubt, w'oulcl have succeeded had he been let alone, certainly if he had been authoritatively assisted, but he made Graves desist. The father of the boy told the conductor that his son was drinking, and he was afraid he would fall off, and requested the conductor to make his minor son come in — bring him in. Here the remote cause, the state of negligence of the passenger thus riding on the platform, the mere condition of the injury, comes to so clear a marking off from the proximate cause of the injury that it is seen at once. In this sharpness with which the remote cause is separated in time and distinctness of efficiency from the proximate cause, the case is indeed remarka
The conductor, as he says, had twice tried the efficiency of a mere request, without effect. Why did he not exercise the care which the circumstances demanded? 2 Wood, R. R. p. 1426, § 318a. Why did he not discharge the duty which was so obviously dictated, and measured by the exigencies of the occasion ? Railroad Co. v. Jones, 95 U. S. 439, 442. The state of danger of the passenger was known to him throughout the whole seven miles. It was expressly brought to his attention by the anxious father, whose request was based on the apprehended intoxication of his son, and his exposure to danger. Isbell v. Railroad Co. 27 Conn. 404. Why did he not use the ordinary and necessary precautions for his safety ? Carrico v. Railway Co. 35 W. Va. 389 (14 S. E. 12); Fisher v. Railroad Co. 39 W. Va. 366 (19 S. E. 578). Instead of discharging the plain and imperious duty imposed upon him in such circumstances, he returned to the father, and told him his son was in no danger. Why did he not make him come in ? “Bring him in,” that was the language of the father’s request. Any conductor of ordinary knowledge, care, and prudence, seeing what he saw, would have done so, according to the finding of two juries. But he tells us on this trial that the company had no rule requiring him to make the passenger riding on the platform come in, and, if he refused, stop the train, and put him off'. But he needed no rule. The father of the minor had explicitly requested it. He saw for himself the urgent necessity of it; and a statute made for such cases, constituting him a conservator of the peace, authorized and enrpowered him to command it, and to enforce his command, without regard to any rule of the company. Code, c. 146, s. 31. The common-law itself makes him a quasi officer, clothed pro hac vice with such powers amply sufficient to have saved this drunken boy from the consequences of his own folly. But the statute evidently contemplates that such a rule will be made. Code, c. 54, s. 34. How came it, we may remark in passing, that this company was running its trains without having this ordinary rule on this important subject? But, in my opin-
In my opinion, the plaintiff has brought his case within the meaning of the rule as laid down in Carrico v. Railway Co. 35 W. Va. 389 (point 9) (14 S. E. 12) and other cases, such as Isbell v. Railroad Co. 27 Conn. 404, cited in Whart. Neg. § 34, and within the true meaning and spirit of the rule as laid down in this case when here before, when read, as it must be, in connection with the above named Case of Carrico, cited therein with approval. See Fisher v. Railroad Co. 39 W. Va. 366 (point 3) (19 S. E. 578.)
To sum up: We have endeavored to show that the rule which governs this case is, if defendant had notice of plaintiff’s condition of drunkenness and dangerous position, but did not use ordinary care and 'diligence, such as was dictated and measured by the exigencies of the occasion, to prevent the injury, he is liable. This rule is supported by authority, and is based upon the broad principle of being in accord with our common sense of right and justice and of humanity, and to that extent it becomes binding law. As far as I can see, this case is not withdrawn from the operation of this rule by any other, based on public policy or general convenience. The maxim, “To him who consents no injury is done,” does not apply; for this passenger, when throrvn off, had reached the stage of having no rational will and no appreciation of his danger, as his conduct, exhibited to us through the eyes of the conductor of the train, abundantly show’s. This rule, applied to the facts of this case, requires that the judgment rendered should stand, in which is impliedly contained at least the following narrow point of law, which is all that the justification of the verdict of the jury requires (how much broader point of law it may comprehend we have no need to say): Where a conductor sees a drunken passenger, twenty years of age, rid