46 W. Va. 761 | W. Va. | 1899
On the 11th of May, 1898, Francis P. Hungerman, an infant, who sued by his next friend, George A. Hungerman, brought 'an action of trespass on the case against the city of Wheeling, claiming damages to the amount of five thou
The facts upon which this suit was predicated are as follows: Near the intersection of Wood and Twenty-eighth streets in the city of Wheeling are two bridges, and between them a depression in the ground. In order that Twenty-eighth street might be brought to a uniform grade, a fill has been made between the bridges, the top of which fill at its narrowest point seems to have been 34 feet wide; the surface of the street over this fill being covered with cinder, and a cinder walk for foot passengers ran along each side. At the time the injury complained of occurred, the plaintiff, accompanied by two other boys, about 15 and 17 years of age, respectively, was riding in an open buggy, behind a horse which the testimony shows was in the habit of balking and backing. The horse was driven by the seventeen year old boy, and they had just turned into Twenty-eighth street from Wood street, and gone a short distance along the fill mentioned, when, as the driver testifies, the horse became frightened at the exhaust of an engine, stopped, and, being struck with the whip, began to back, and became uncontrollable. After backing fifteen feet, the buggy and horse went over the embankment. This witness says I let the horse do as it pleased. I couldn’t do anything more, so I tried to talk to the horse, and that didn’t do any good. We went over.” When asked if the horse had got uncontrollable, he answered, “To my sense, it was.” The distance this horse backed is stated differently by different persons. As we have seen, Gould puts the distance at fifteen feet; Morrison says twenty to twenty-five feet; Bridigan says forty feet. If we average these estimates, it will make twenty-six feet. In stating that the horse became uncontrollable Gould is confirmed by Morrison, and this witness saw the accident, and tells how it occurred. He” says: “I
During the progress of the trial, the defendant, by its counsel, moved the court to give to the jury fourteen instructions. Nos. 1, 2, 3, 4, and 5 were given, and the remaining nine rejected. The defendant excepted to the action of the court in refusing .the same. The instructions thus refused read as follows, “(6) You are instructed by the court that if you find that Twenty-eighth street at the point where the accident occurred, was defective and dangerous for want of a barrier or rail, and that the horse mentioned in evidence became frightened at a locomotive, and stopped and shivered and backed, and that sufficient time elapsed between the fright of the horse and the accident to permit the driver, being a man of ordinary prudence, to make a proper effort to gain control of the frightened animal, even .though he should fail, the injury must be attributed to the viciousness of the horse, rather than to the failure of the city to maintain barriers, and you must find for the defendant city. (7) In order to justify a verdict against the defendant city, it is necessary that it appear from the evidence not only that ,by reason of the absence of barriers or guard rails, Twenty-eighth street, at the point where the accident occurred, was unsafe, but also that it was defective, and out of repair; and, unless this fact is made to appear from the evidence, your verdict must be for the defendant city. (8) The court instructs the jury that under the law of this State, which is binding upon the jury in this case, that when a horse, by reason of fright, disease, balkingness, or viciousness, becomes actually uncontrollable, so that his driver cannot stop him, or direct his course, or exercise or regain control over his movements, and in this condition comes upon a defect in a highway, or upon a place which is defective for want of a railing, by which the injury is occasioned, the town or city is not liable for the injury, unless it appears that it would have occurred if the
The court also, at the instance of the plaintiff, gave to the jury .three instructions, and to the second and third thus given the defendant objected, and claimed that the court erred in giving instructions Nos. 2 and 3 asked for by plaintiff, which read as follows: (2) The court instructs the jury that, where a rail or barrier is necessary for the proper security of travelers at places along a public street which, from their nature, would be otherwise unsafe, and the maintenance of such rail or barrier would have prevented the happening of an injury, it is negligence not to construct and properly maintain such a barrier. Therefore, in this case, taking into consideration the nature and construction of Twenty-eighth street at the scene of the accident, the declivity extending down from the north side of said street to ,the Terminal Railroad tracks beneath, the several lines of railroad beneath said street, and the railroad extending along Wood street and over Twenty-eighth street at the intersection of said streets, and the two bridges located on Twenty-Eighth street, if you believe that a rail
Now, without taking up these instructions seriatim and analyzing them, my conclusion, from the whole case-presented by the record, is that the error into which the-learned judge was led in ruling upon these instructions arose mainly from a misapprehension of the proximate-cause of the plaintiff’s injury. The evidence clearly shows-that the street was thirty-five feet wide at the point where-the accident occurred, and that this same driver had repeatedly driven along the same without accident, when-there was no railing along the embankment, and evidently would have done so on this occasion but for the fact that the railway engine exhausted its steam, causing the horse to back and become unmanageable. But for the noise made by the escaping steam, no accident would have occurred;, and this noise, causing the fright of the horse, taken with the horse’s natural disposition to balk and back, was the-proximate cause of the accident, and not the want of a. guard rail. It is true, a rail might have prevented the accident, but no guard rail would have been necessary if the-
Reversed.