85 W. Va. 346 | W. Va. | 1920
Plaintiff instituted this suit to recover damages for an injury which he alleges he sustained by being knocked from the top of a car by coming in contact with an overhead wire belonging to the defendant. Plaintiff was a brakeman in the employ of the Baltimore &' Ohio Railroad Company, and while standing on top of a moving car in the discharge of Kis duties as 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 Railroad 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 release of all liability because of said injury, and that the legal effect of this release of the said railroad 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 Court 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
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 the special plea, is not a bar to the plaintiff’s cause of action, if any he has, against the defendant.
Whether the defendant can prove the amount received by the plaintiff from the railroad company, the other joint tort feasor, in reduction of any damages which might be allowed to him in this case, we cannot decide upon this certificate. Our jurisdiction is strictly appellate. That question has not yet arisen in the court below, 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.