65 W. Va. 264 | W. Va. | 1909
John L. Porter took passage on a train of the Kanawha & Michigan Kailroad at Charleston to go to Wicher, a flag station on that railroad, and in getting off the train was killed, and his administrator recovered in the circuit court of Kanawha county a verdict and judgment for five thousand dollars against the railroad company, and the company brings the case here.
There is no conflict of evidence in the case. Tested by the evidence adduced by the plaintiff the facts are: That Porter sat in the third seat some ten feet from the door of the car,
But the negligence of Porter did not consist alone in getting-off the train while in motion. He held to the railing of the car for three steps and was thrown under the train. All the witnesses say this. It is beyond question. This was gross negligence. Porter was in full possession of his faculties. A moving train, increasing speed every inch, is a dangerous carriage from which to alight. Even if going slowly, its momentum mákes it dangerous to alight from it. In the case of Diddle v. Continental Co., this term, we said that reckless or deliberate encountering of known danger, or danger so obvious that a reasonably prudent man would have avoided it, if the circumstances do not necessitate encountering it, is a voluntary exposure to danger; that unconsciousness of danger does not change the case; that if the danger is obvious, and nothing to preclude deliberation or free-
The defendant asked, but was refused, an instruction that the evidence was not sufficient to authorize a verdict for the plaintiff and that the jury should find for the defendant. Now, the evidence plainly shows that Porter was under no necessity to.get off the train while moving and increasing its speed. It was simply a rash act of his own for mere convenience, when he could have gone a mile or so further on the train and come back in a few hours. Law above shows that he was chargeable with negligence per se under the evidence. Negligence in law. That would inevitably call for a verdict for the defendant, even if we could sajr, as we cannot, that the company was in fault. We have often said that where the evidence is such in cases of negligence as that the court would be compelled to set aside a verdict for the plaintiff, there the court ought, if asked, direct a verdict for the defendant. Ketterman v. Railroad Co., 48 W. Va. 606; Cobb v. Glenn Boom Co., 57 Id. 49. In White v. Brewing Go., 51 W. Va. 259, the same test is made, that is, that the court should instruct a jury for a party in whose favor the evidence “plainly and decidedly preponderates.” Judge DeNT said that when the evidence was such that two reasonable minds could not differ the court should not hesitate to direct a verdict “for thereby justice is promoted, a useless controversy brought to an end and time, cost and fruitless labor saved to litigants, ■ the court and the public.” The same principle is in Diddle v. Continental Co., decided this term. The Supreme Court of the United States said that it was settled law in that court “when the evidence given at the trial, with all inferences the jury could justifiably draw from it,, is insufficient to support a verdict for the plaintiff, so that such verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Louisville &c. Co. v. Woodson, 134 U. S. 614. A vast array of authorities for this proposition will be found in Blashfield on Instructions, section 5. The court should have given the instruction to find for the defendant. The defendant is entitled to have that matter of error passed on in this Court.
This Court is of the opinion that the circuit court should have directed a verdict for the defendant. We are clear about this;
Instruction No. 8 says that if the train did not stop long enough to enable Porter to leave it while stationary, and that he stepped off while the train was in motion, it was a question for the jury to say whether he' was guilty of negligence and barred from recovery. The law is that if a man leaves a moving train, he does so at his own risk, it is negligence per se, negligence in law, for which the court may withdraw the ease from the jury.
Instruction No. 4 told the jury that it was the duty “of the defendant to use the greatest possible care and diligence to safely carry and deliver Porter to his destination, and to stop-long enough to afford him reasonable opportunity, by the use of ordinary diligence on his part, to alight, and not to start until he h'acl alighted, if, by the exercise of great diligence, said defendant- could have known that Porter was in the act of alighting,” the verdict must be for the plaintiff. This instruction might be readily construed as requiring the trainmen to see that every person wanting to get off had gotten off. It demands
Again, the court gave for the defendant an instruction that if the train had started while John L. Porter was leaving the car, and was in motion before he went out of said car to the platform, then it was negligence in him to attempt to alight from the car while in motion, and the verdict should be for the defendant. Another instruction was that if the train stopped long enough to allow passengers to alight, and Porter could have left it without injury, had he used diligence, then the jury must find for the defendant. Now, under the evidence there is no question but that the hypothesis of these two instructions was fully sustained, and therefore this verdict under the evidence is contrary to these instructions given by the court. It is a verdict, as shown by the evidence, against the law of contributory negligence. “A new trial will be granted: 1. Where the verdict is against law. This occurs when the issue involves both fact and law, and the verdict is against the law of the case on the-facts proved. . 2. Where the verdict is contrary to the evidence. This occurs, when the issue involves matter of fact only; and the facts proved require a different verdict from that found by the jury.” Grayson’s Case, 6 Grat. 712.
Therefore, we reverse the judgment, set aside the verdict and remand the case for a new trial if'the plaintiff shall be so advised.
A petition for rehearing attacks tbe above opinion for saying* that the evidence is not conflicting. It is not appreciably so. The plaintiff proved the true status of the case. He proved by Garten, who was face to face with Porter in the car, that Porter stood talking with him, and that either before he left his seat,’ some ten feet from the door, or before he reached the door, the train started. Young, a witness for defence, definitely corroborates Garten. He was in the car, saw Porter lingering in conversation with Garten, and when asked if the train started before Porter left the platform, answered, “Yes, sir, before he went out of the car, before he left Garten, about the time he left Garten.” He said further, “At the time the train started he was shaking hands with Garten, about the time the train started I seen them shaking hands.” The plaintiff and defendant both so prove. Keeny, a witness for plaintiff, says “When I first saw Porter he was coming down the steps, the train was moving out as he came down.” This renders likely the evidence of Garten and Young; for it shows that Porter did not reach the platform or steps- until already the train had started. It was “moving out,” how fast Keeny could not say; but it was moving out, and Porter-had no right to risk its speed, as any one may be deceived as to-speed or momentum of a starting train, and any one knows it may increase momentum rapidly, even suddenly, Dempsey, another witness for plaintiff, sa3's: “The train was moving out when I looked around, and he was on the steps.” Again I say he corroborates Garten and Young. He, too, proves that the train had started when yet Porter was on the steps.- That the train was moving with considerable, with dangerous, speed when Porter alighted is beyond question from the fact told by several witness for the plaintiff, not contradicted, not open to question, that is, that Porter, holding to the railing, was “jerked” and thrown by the car. If it was merely moving at a snail’s gait, why did the train “jerk” him, and throw him? Here is an undisputed fact proving a physical fact from our knowledge of the law of momentum or force, that the train had already attained a dangerous speed when Porter alighted. Fhrtheir. Dempsey, a plaintiff’s witness, says that Kirby, who had taken Porter’s bundle out, was standing there'on the back side of the
We would not have further detailed evidence beyond the reference to it in the original opinion but for the assertion in the petition for rehearing that we had heard the case, on only “some of the evidence adduced by the plaintiff,” and tried a case not presented to the jury. We dislike to express opinions on evidence, or detail it, as we do not feel that on mere questions of fact -an appellate court is called upon to detail evidence, or go further than find the result and announce it; but as the petition calls on us to do so, we make this review of the evidence. But for that we should not have done so. We reach the judgment on the evidence, taken as a whole, on the plaintiff’s evidence. It is not sufficient to sustain the verdict. Reversed.