Leisure v. Monongahela Valley Traction Co.
101 S.E. 737
W. Va.
1920
Check Treatment
Ritz, Judge:

Plаintiff instituted this suit to recover damages for an injury which he alleges he sustained by being knocked from the top of a сar by coming in contact with an overhead wire belonging to the defendant. Plaintiff was a brakeman in the emplоy of the Baltimore &' Ohio Railroad Company, and while standing on top of a moving car in the discharge of Kis duties аs such brakeman, he came in contact with an overhead wire of the defendant which it is alleged was negligently placed at an insufficient distance above the top of the car, ‍‌‌‌‌​​​‌​​​‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‍as a result of which he was thrown from the car and injured. The defendant "filed a special plea alleging that the plaintiff’s injury, if any was sustained by him, was the result of the concurrent or joint negligence of itself and plaintiff’s employer, the Baltimore & Ohio Railroаd Company; that the railroad company was negligent in placing him in an employment of such dangerous character, as well as the defendant in making the place dangerous; and that the said railroad company and the defendant were joint tort feasors; that the said railroad company paid to the plaintiff a sum of money, the amount of which is not specified, in full satisfaction of the injuries sustained by him, and received from him a relеase of all liability because of said injury, and that the legal effect of this release of the said railroаd company is to release and discharge this defendant from any suit because of the injuries sustained by the plaintiff on the occasion referred to. The court rejected this plea and certifies the same to this Cоurt for its opinion thereon.

It seems to be that formerly the law was that where an injured party accepted satisfaction from one joint tort ‍‌‌‌‌​​​‌​​​‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‍feasor, and executed a release in consideration thereof, he thereby released nil others engaged in the tort. Ruble v. Turner, 2 Hen. & M. 38; Bloss v. Plymale, 3 W. Va. 398. But how is this doc*348trine affected by our statute, § 7, ch. 136 of tbe Code, which, provides : “A release to or an accord and satisfaction with one joint trespasser heretofore executed or had, shall not inure to the benefit of another such trespasser and shall be no bar to an aсtion or suit against such joint trespassers for the same cause of action to -which the release or accord and satisfaction relates.” The plaintiff contends that by reason of this statute his acceptance of satisfaction from the Baltimore & Ohio Railroad Company, and the execution of a releаse to it, did not have the effect of releasing the defendant here from liability to him, while the defendant argues that that statute has no application to this case. It will be'noted that the Act provides that a releasе to or an accord and satisfaction with one joint trespasser shall not inure to the benefit of anothеr such trespasser. The defendant argues that the word trespasser used in the statute is not as broad as the expression, tort feasor, but must be limited to include only such persons as have inflicted an injury by a direct applicаtion of force, either to the person or property of another, and cannot be taken to inсlude -those persons who are responsible for an injury to another by reason of the negligent doing of some act, or the negligent failure to perform some duty, which results in consequential injury to another. The correсtness of the ruling of the court below depends, of course, ‍‌‌‌‌​​​‌​​​‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‍upon the proper construction of this term. Can it be said that the Legislature in using the word trespasser in the section of the statute above quoted intended to сonfine it to a meaning so narrow as to include only those who were guilty of a wrong for which the technical action of trespass could be maintained, or was this word used in that broader and more general sense as indiсating any person who might be guilty of an infraction of the legal rights of another? If the Legislature had been treating оf the character of action that might be brought in a particular instance, we would, no doubt, be constrained to hold that the word must be confined to its limited technical legal sense, but this statute was enacted to define the rights of parties generally, and determine their relative duties*. Under these circumstances we must give to the word trespasser the sense which it ordinarily conveys. It may be said that the synonym of trespass in law latín is transgress siOj a word which in its general signification embraces every in*349fraction of a lеgal right. It comprehends not only forcible wrongs, but also acts, the consequences of which make them tor-tiоus. In general it may be said that any misfeasance or conduct of one man whereby another is injuriously treated or damnified is a trespass in the general sense in which that word is used. Cox v. Strickland, 120 Ga. 104, 1 Am. & Eng. Ann. Cases, 870; 3 Bouvier’s Law Dictionary, 3319.

Our conclusion is, therefore, that the execution of ‍‌‌‌‌​​​‌​​​‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‍the release by the plaintiff' to the Baltimore & Ohio, Railroad Company, set up and relied upon in thе special plea, is not a bar to the plaintiff’s cause of action, if any he has, against the defendаnt.

Whether the defendant can prove the amount received by the plaintiff from the railroad compаny, the other joint tort feasor, in reduction of any damages which might be allowed to him in this case, we cannot dеcide upon ‍‌‌‌‌​​​‌​​​‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌​‌​‌‌​​​‌‌​​‌‌‌‌‌‍this certificate. Our jurisdiction is strictly appellate. That question has not yet arisen in the court bеlow, and has consequently not been determined there, wherefore we are without jurisdiction to pass upon it here.

Our conclusion is that the circuit court properly rejected the plea, and we answer the question certified accordingly.

Affirmed.