43 W. Va. 110 | W. Va. | 1897
The facts are as follows : The plaintiiPs intestate, Janies 0. MeCreery, for about two years prior to Ajiril, 18913, when the accident, complained of in the declaration in this case occurred, had been in the employment- of the Huntington & Big Sandy Railroad Company as passenger conductor. A short time prior to the accident which resulted in his death, the Ohio River Railroad Company leased the property and franchises of the Huntington & Big Handy Railroad Company, and continued the said MeCreery in his appointment as passenger conductor on what was known as the “Dummy train,” which ran between Guyandotte and Kenova. Between the two points above mentioned there is a bridge across Twelve Bole river. Home fifty or sixty feet north of .this bridge there had been erected, by the contractors who constructed the bridge, a derrick,' which had been used by them in raising stone during the construction of the abutments of the bridge. This derrick was not on the land of the defendant. The- work on the bridge had been completed several months before the happening of the accident, and the derrick liad been dismantled. On the evening before the accident occurred the derrick had been set up again and used by some one in loading some stone on cars belonging to the defendant. Half an hour before the wreck occurred, the section foreman of the petitioner passed by the derrick, and, seeing the rope attached thereto loose, had it fastened back. The train known as the “Dummy train” consists of a small engine and car, very similar to a street car, upon which McOreery had been conductor ever since the opening of the Huntington & Big Handy Railroad. This car made at least seven round trips each day between Huntington and Kenova, passing the point of accident at least fourteen times each day. The .rules of the company required that when MeCreery was not engaged in collecting fares, he was to station himself in a conspicuous place on the rear, of the train (if it should be running backwards), so as to
The only defense is contributory negligence, the defendant insisting that, the accident could have been averted had the intestate properly discharged his ■ duties. Ward's
At the instance of the plaintiff, the court gave the jury six instructions, to each of which the defendant objected. Eor obvious reasons they will he considered in their inverse order. The sixth instruction is as follows: “The court instructs the jury that it was the duty of the defendant in this case to keep its roadbed and track in a reasonably safe condition for the passage of its train along and over the same, and to keep the same clear of obstructions thereon, or in close and dangerous proximity thereto; and if the jury believe, from the evidence in this case, that there was standing near the plaintiff’s railroad and track at the point where it is alleged in the declaration that the accident herein occurred, a derrick, with an arm or boom attached thereto, and that said arm or boom of said derrick was of sufficient, length to swing over the. roadbed or track of the defendant, and thereby endanger the passage of trains along and over said track at said point, then it was the duty of the defendant to either cause said derrick and arm or boom attached thereto to be removed, or to see that the same was kept securely fastened in such a way and
The fifth instruction is as follows : “The court instructs the jury that where the defense is contributory negligence on the part of the plaintiff’s decedent, the burden of proving contributory negligence is on the defendant, and, to sustain it, it must have a preponderance of the evidence; i. e. it nnist appear from all the evidence in the case.” No objection is urged against it, and apparently there is none.
The fourth instruction is as follows: “The court instructs the jury that if they find from the evidence that James 0. McOreery, at the time of the, accident, was standing either in the door of the front car as it was moving, or looking through the glass in the door, and that he could' see ahead of the train as well as if he had been on the outside, that would be a sufficient compliance with the rule requiring him to take a conspicuous place on the front of rlre car. ” The objection to this instruction is that there was no evidence that intestate “was standing either in the door of the front car, or looking through the glass in the door.” The evidence of the witness Ferguson is that, the conductor was standing at the door in the west end of the car, where his duty would require him to be to keep a lookout; hence the presumption is that he was there for that purpose, and discharging his duty, in the absence of evidence to the contrary. At least this evidence tends to prove the matter of the instruction, and it was, therefore, proper for the consideration of the jury.
The third instruction is as follows : “The court instructs the jury that an employe running on tire trains oC the defendant has the right to presume that the roadbed is in a reasonably safe condition for the passage of its trains,
The second instruction is as follows: “The court instructs the jury that, although the employe, MeUreery, did in fact know of the existence of the derrick in question,, and its situation with reference to the roadbed and track, yet the said MeUreery had the right to presume that the defendant would keep said derrick so secured as to make it reasonably safe, or cause the same to be removed after the completion of the bridge; and it was not such negligence on the part of said MeUreery to remain in the employment of said defendant as would defeat a right of recovery in this ca.se.” The same objection is urged to this instruction as to the third, and is equally untenable. The company had the right to have the derrick there, but they should have kept the boom secure, so as to prevent it becoming a dangerous nuisance to its employes using its .track, and this whether owned by itself or its independent contractor doing its work; and the conductor had the right
The first instruction is as follows : “The court instructs the jury that it is the duty of a railroad company to keep its roadbed in a reasonably safe condition, so its employes on its train may not be endangered in the discharge of their duties; and if the jury find from the evidence that the defendant allowed and permitted a derrick to stand on, or so near its right, of way and roadbed, and so loosely fastened and tied that it was liable to be blown or to be swung around across the defendant’s track, and thereby endanger the passage of trains and the life and limbs of employes thereon, and that said derrick did actually blow around or swing across the track, and cause the injury complained of, then you should find for the plaintiff, and assess her damages such as may seem fair and just, not exceeding $10,000.” This instruction clearly violates the rule laid down in the case of Woodall v. Improvement Co., 38 W. Va. 23 (17 S. E. 386). The third syllabus is as follows: “When the court instructs the jury that, if they believe from the evidence certain hypothetical facts mentioned in the instruction, they must find for the party plaintiff' or defendant, as the case may be, but omits from ’such statement, of facts a-material fact, which, being believed from the evidence, would require a different verdict, such instruction is erroneoiis, and, if excepted to, and not cured, is ground for reversal.” This present instruction entirely omits any reference to the facts bearing 'on the intestate’s alleged contributory negligence, and which, if established to the satisfaction of the jury, were sufficient to defeat, the action.
O. E. Bryan testified that at. the time he first noticed the boom across the track — which was about three hundred feet from it, and too late to stop the train at the speed it was going — the conductor whs sitting at the end of the car nearest the engine, with a newspaper in his hand. If this were true, he was not at his'post of duty, nor keeping a proper lookout ahead, and the jury could very well infer therefrom that, had he been discharging his duty, the accident would not have happened. But the instruction entirely ignores this fact., and, even standing by itself, takes away from the jury the question of contributory negligence, and directs
Reversed.