52 W. Va. 166 | W. Va. | 1902
In an action for trespass on the case W. H. Hannnm recovered a judgment against the Petersburg and Pranldin Telephone Company, a partnership composed of various parties, for four thousand, five hundred dollars for personal injuries to plaintiff. The defendants obtained a writ of error from the said judgment. The first error assigned is the overruling of the demurrer to plaintiff’s declaration. It is claimed that the declaration is illogical, ungrammatical and unintelligible, and does not specify any act of negligence on the part of the defendants causing injury to the plaintiff, and that its allegations are too general and not specific and certain enough to be ■ understood or to give notice to the defendants of the specific acts of negligence of defendants causing injury to the plaintiff. The declaration alleges that the defendants were the owners and operators of a certain telephone line with all of its posts, boxes, insulators and wires, extending and running from the town of Petersburg in the county of Grant to the town of Pranldin in the county of Pendleton; that said telephone line passed across and along the public road running between said points; that said road was a public highway and had been for more than twenty-five years then last past, and had been continuously used and traveled as a public road and highway by the citizens of said counties as well as by other persons for all that time; that the said defendants being the owners and operators of said telephone line for a long time had repaired, maintained, supported and amended said posts, insulators, and wire belonging to said line and of right ought to have maintained, repaired, supported and amended, and that said defendants during all the time of their ownership and operation of said telephone line ought to have repaired, maintained, supported and amended the said posts and insulators and wire of said telephone line as often as needed or occasion had been or required; that citizens of said county and other persons going and traveling on said public road and highway might not through the insufficiency of said posts, insulators, wires and the failure to repair, maintain, support and amend the same be injured and damaged. “Yet, the said defendants, well knowing the premises, aforesaid, on the 12th of January, 1900, in the night time, in the county of Grant, through the insufficiencies and defect of
The sixth assignment is in not granting defendants a new trial upon the evidence and affidavits of Dr. T. J. Grove and George Bean, as set out in defendants5 bill of exceptions Ho. 3, and in refusing to consider the facts set out in said affidavits in support of the motion. The affidavit of Grove was to the effect .that since the trial of the cause in which he had been a witness he had been associated with the plaintiff in the -practice of medicine and he had had several conversations with him concerning his physical condition and the injury which he claimed to have received .to one of his kidneys by being thrown fromhorse,as testified to by him at the trial; that he had examined the urine of the plaintiff in December, following the trial, and found a slight amount of some kind of discoloring matter causing it to have a reddish color before boiling; that said urine was evacuated after plaintiff had been out about the stable about one-half hour where he had gone after affiant spoke to him abofit testing his urine; that upon another occasion afterwards, probably about the iatter part of January, affiant again tested plaintiff's urine, evacuated in his presence and found it free from any deposit and in good condition and remarked to plaintiff that he was well; plaintiff then said he felt a great deal better, he rested well, he had a good appetite and was improving. Affiant stated that plain-' tiff had since the trial been traveling over the country visiting
The 8, 9, 10, 11, 16 and 17 assignments are that the court erred in permitting improper testimony to be offered and questions asked as set out in bills of exceptions Hos. 4, 5, 6, 7, 12 and 13 respectively. In bill of exceptions Ho 4 plaintiff was permitted to be asked over the objection of defendants what expense was incurred by Mm in going to Baltimore for examination and treatment, to which plaintiff answered as follows: “I went from hero to 'Winchester in my own buggy, the railroad fare for the round trip from Winchester to Baltimore was $7. I was with my brother-in-law while there. I went to see Dr. Tiffany to see if it would be necessary to take out my kidney.” And further testified that said visit was made after the suit was brought. I am unable to see how this could prejudice the defendants. It showed that plaintiff was doing what he could to be cured and at the same time discloses the fact that he was able to travel through the country in a buggy, notwithstanding his injuries. It is claimed by plaintiffs in error that “The jury may have included a large amount for the time and expenses for this trip.” The fact is there is no testimony as to any expenses on that trip outside of $7 railroad fare. There is no evidence that Dr. Tiffany charged anything, or that plaintiff claimed anything for time or expenses. Bill of exceptions Ho. 5 goes to the testimony of Dr. II. M. Gamble, who stated that he was a physician, residing at Moorefield; that he graduated in 1861, and liad been since that time in active practice; that he had a microscope and adjuncts and had examined tire urine of the plaintiff; first made an examination in February, 1900; that the urine was putrid and offensive and without there being any other evidence that the urine he examined and tested was voided by the plaintiff except the plaintiff’s own statement, and witness was asked bj1, plaintiff’s counsel his opinion of the character of the wound or injury to the plaintiff and answered that he recollected of giving his opinion to plaintiff, that he was suffering from a laceration of the kidney which evidence was permitted to go to the jury over the objection of defendants; and bill of exceptions Ho. 6 sets forth that as the plaintiff had testified in the case on his own behalf, Dr. Gamble, a witness on behalf of the plaintiff, after he had testified that it was very difficult to
Bill of exceptions Ho. 7 is in allowing the witness, Blacksmith Feaster, to testify as to the condition of the horse’s foot, who says that the horse was brought over to him by the boy, Walter Racy for him to examine, and that ho found a cut on the left foot just above the hoof, it was a sore place on the foot and looked as if it had been done some time. It was claimed by plaintiff in error that the description of the wound on the horse’s foot by Feaster, was in a different place from the one mentioned by the witness, Racy, who examined the horse’s foot the next morning after the injury. Feaster says it was between the hair and the hoof on the left side of the left foot, while Racy says the cut was on the left foot above the hoof, wliile the cut was older and had begun to heal when Feaster examined it. Ilis testimony corroborates Racy’s, as to where it was located. The court did not err in admitting the testimony of Feaster. The 13th assignment is that the court erred in refusing to permit the defendants to prove by the witness, W. C. Smith, and other witnesses, the facts and circumstances relating to the telephone line and the wires and the impossibility of plaintiff being injured thereby, as claimed by him, as set out in bill of exceptions Ho. 8. Defendants offered to prove by said Smith and other witnesses that they had gone to the place in the road whore the accident occurred in the month of Juno, 1900, about six months after the occurrence and upon examination to show that the wire in the condition as it was then would not when removed from pole Ho. 3 have come down in the middle of the road so
The 16th and 17th assignments as to the admission of testimony is to the condition o£ the wire in the fall of 1899, before the injury occurring in January, 1900, as set out in bills of exceptions Nos. 13 and 13. Witness Ross Shobe testified that on the 7th of October, 1899, he saw the wire across the road lying in the ditch and saw it hanging on the bushes, afterwards that it caught his wagon standard; one day when ho was going to town it was hanging on the bushes. Luke Weese testified as set out in bill of exceptions No. 13, that he had noticed the telephone wire several times in the fall of 1899 at one time when he was riding he got off and put said wire on the bushes and when he was afoot he put it up. .Evidence to prove the condition of the wire months prior to the time pf the injury was improper and should not have, been admitted. Hubbard v. Railroad Co., 59 Ia. 583; Temperance Hall v. Giles, 33 N. J. Law, (4 Vroom) 360; Hollands v. Dorchester, 6 Cushing (Mass.) 396. Tire thirteenth assignment is that the court erred in giving plaintiffs instructions Nos. 1, 3 and 3, as set out in bill of exceptions No. 9. Instructions Nos. 1 and 3 set out in said bill of exceptions are not specially attacked in their brief by plaintiffs in error and are identical with instructions given in case of Schwartz v. Shull, 45 W. Va. 405, where it is said, “they properly propounded the law and were rightly given." The third instruction set out in said bill of exceptions is as follows: “The court instructs the jury, that the defendants, in erecting and .maintaining the telephone line' mentioned in the declaration, were bound to place, support, and maintain its wires by good, reliable and efficient means and appliances, so as not, in any wajr, to interfere with the use as a public highway of the road leading from the town of Petersburg in Grant County to the town of Franklin in Pendleton County, and if said defendants failed to provide
It is insisted bjr plaintiffs in error that there was no averment in the declaration that the defendants failed to provide good and reliable and efficient means and appliances to support and maintain said wire, nor does it aver that by such failure the wire was stretched across said highway near the road and interfered with plaintiff in the use of the road. A careful inspection of the declaration will show that the averments in this regard are sufficient; it says that “Through the insufficiencies and defects of the said posts, insulators and wire of and belonging to the said defendants, and through the failure of the said defendants to repair, maintain and amend the said posts, insulators, and wire which ought to have been provided, maintained, repaired, supported and amended by the defendants.” It is then averred that the wire was stretched adross said highway near the ground through the negligence and carelessness of defendants. It is insisted that the instruction is incomplete in that it does not tell the jury that they must find that the negligence of the defendants was the cause and the proximate cause of the injury, and cite Storrs v. Feick, 24 W. Va. 606, (Syl. pt. 2), where it is held: ‘It is error for the court, in giving instructions to the jury, to single out certain facts and instruct them that, if they are true, they must find for either party in accordance with such facts, when there are other facts in the cause bearing on the subject tending to establish a different conclusion,” and Riley v. Railroad Co., 27 W. Va. 245; McMechen v. McMechen, 17 W. Va. 683; Hawker v. Railroad Co., 15 W. Va. 628; 2 Thompson on Trials sec. 1663, 4, 5 & 6. In the last section mentioned the rule is laid down: “The question of negligence is said to be for the jury when there is a substantial doubt as to the facts or as to the inferences to be drawn from them, and it is for the court only when the facts are undisputed and the inference of negligence is clear.” The instruction • does not direct the jury to find for the plaintiff m the event of finding certain facts to exist, but only instructs them as to the duties incumbent upon the defendants to the public in maintaining
Por the reasons herein given the judgment will be reversed, the verdict sot aside and the cause remanded to the circuit court of1 Grant County for a new trial.
Reversed.