49 W. Va. 296 | W. Va. | 1901
E. Kyle brought an action against the Ohio Biver Bailroad Company before a justice of Cabell County, which went by appeal to the circuit court, and in that court the plaintiff recovered upon the verdict of a jury, a judgment against said company, and said company has brought the ease to this Court.
One objection to the judgment made by the company is that the court refused to sustain a motion to quash the return of service of the summons because of defect therein. The company did not appear before the justice, but the record shows by several orders entered at different times that the parties appeared in the case, and no motion to quash the return was made; and more particularly one order shows that the company moved for a continuance and obtained it. Afterwards it made this motion to quash. It came too late, as in order to take advantage of a defect in a summons or return the appearance must be for that purpose only, and the record must so state, and the motion for a continuance is regarded as a waiver of the defect. Layne v. Ohio River R. Co., 35 W. Va. 438.
Another objection made by the company is that the justice had no jurisdiction of the action, because the plaintiff sued for an amount exceeding the jurisdiction of the justice, and that a motion made by the company io dismiss the action was overruled by the court. The facts pertinent to this point are that the summons claimed a recovery for the amount of two hundred and seventy-five dollars, while the bill of particulars or complaint filed with the justice states the liability of the defendant to be for negligently causing the meadow of the plaintiff and the herbage thereon to be destroyed by fire by negligently setting fire to the grass in the meadow and destroying fourteen acres of the meadow, for which the plaintiff claimed two hundred and fifty-two dollars; and for negligently killing a steer of the value
Another complaint against the judgment made by the company is that the court refused to exclude from the jury 'all evidence touching the killing of a steer, which was included in the plaintiff’s bill of particulars. The company contends that the evidence was so slight as to this claim that the court should have excluded it, because there was no evidence to show that the steer was killed by the railroad, and particularly there was no evidence to prove negligence upon the part of the company even if the steer was killed by the company’s train. Kyle’s son was driving some cattle on a hot day and stopped to let them rest in the shade, and one of them escaped. Search was made for it, and it was found lying cut and mangled by the railroad track, ana the tracks of the steer were found on the railroad track. Plainly it cannot be said that there was no evidence to show that the steer was killed by the cars so as to warrant a court in taking the matter from the jury. Indeed, there was ample evidence to justify the jury in finding that the cars killed.the steer. But the more plausible point here is that there was no evidence to show negligence in the killing of the steer. The law is that if the trainmen saw, or could and should have seen, the steer in time to avoid killing it, the company is responsible. There was evidence before the jury bearing on the location of the dead animal and the character of the railroad track there, and that the track was straight for at least one hundred yards, so that the animal could be seen for that distance at least. The question of negligence is a mixed question of law and fact, and is peculiarly a question for the jury under all the circumstances of the case. Johnson v. Balto. & Ohio Co., 25 W. Va. 570. It is for the jury to weigh evidence. Scott v. Ches. & Ohio Ry. Co., 43 W. Va. 484. A court must be very cautious in taking a case from the jury. I endeavored to lay down the principles touching the practice of directing a verdict or excluding the plaintiff’s evidence in Ketterman v. Dry Fork Railroad Company, 48 W. Va. 606, (37 S. E. 683). There was, under the principles there stated, and stated in many other cases like Carico v. R. R. Co., 35 W. Va. 589, enough evidence to call for the question of negligence being submitted to the jury.
The last point made by the railroad company against the verdict is that the jury found a verdict for two hundred dollars
We must consider that a partly grown crop has a potentiality of maturity under the laws of nature enabling us to say, with fair and reasonable certainty, that it will, by the law of nature, come to the full grown matured crop. “Seed time and harvest shall not fail.” This is not conjectural pi'ofit; it is reasonable certainty. To warrant damages, to give the measure, absolute certainty is not required. Eeasonable certainty is all that is required in law. It .was proper to receive evidence of the usual, natural crop of hay on the meadow attested by past experience. The maturity of that crop was within reasonable probability and it was not improper to admit evidence of the usual value of the crop. These views will be sustained by the able discussion and citation of authorities upon the subject to be found in the second
Affirmed.