78 W. Va. 596 | W. Va. | 1916
Lead Opinion
Defendant is prosecuting this writ of error to a judgment of the circuit court of Mercer county against it for $15,000, recovered by Reuben T. Owen in an action for personal injury, alleged to have been caused by defendant’s negligence.
The Appalachian Power Company is a Virginia corporation engaged in the manufacture and sale of electrical power. The
Defendant filed three special pleas, alleging, in one, that plaintiff is an infant and that George L. Dillard was not his next friend and had no right to bring or maintain the action; in another, that defendant is a corporation, chartered under the laws of Virginia and has its principal office in the city of Richmond, in that state where its principal officer, upon whom service may be had, resides; that the cause of action, if any, arose in the state of Virginia; and that plaintiff was, at the time he instituted his suit, and still is, a resident of that state, and was never, at any time, a citizen or resident of the state of West Virginia; and the tMrd plea alleges the insufficiency of the writ and return, presenting, in different form, the same question presented by the second plea. On motion of plaintiff all. these pleas were stricken out, on the ground that they constituted no defense. Three days previous to that order, the court made an order ratifying and approving the selection of said Dillard as plaintiff’s next friend, and authorizing him to continue the prosecution of the suit. To all of the foregoing rulings defendant excepted.
Because of his infancy, it is contended plaintiff had no right to appear in court, either in person or by attorney, and that he can not do so by next friend, unless and until such next friend is appointed by the proper authority, and that a person suing in a representative capacity must allege and prove his light to bring the action, which was not done in this case. The following recent decisions of this court are cited in support of the last mentioned proposition, viz.: Austin v. Galloway, 73 W. Va. 231, 80 S. E. 361; Moss, Admx. v. Campbell Creek Coal Co., 75 W. Va. 62, 83 S. E. 721; and Crockett, Admr. v. Keystone Coal & Coke Co., 75 W. Va. 467, 84 S. E. 948. The rule announced in those eases does not apply here.
The action is for a personal injury and, therefore, transitory, following plaintiff wherever he goes. It is not confined to the place of accident, but may be brought in any court of general jurisdiction, provided jurisdiction can be obtained over the defendant. Humphreys v. Newport News & M. V. Co., 33 W. Va. 135, approved and followed in later cases. Quesenberry v. People’s Loan & Savings Ass’n., 44 W. Va. 512; and Empire Coal & Coke Co. v. Hull Coal & Coke Co., 51 W. Va. 474. See also, Eingartner v. Illinois Steel Co., 94 Wis. 7, 59 Am. St. Rep. 859, a well considered case on tlie subject of jurisdiction of transitory actions.
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‘ ‘ Second, If a corporation be a defendant wherein its principal office is, or wherein its mayor, president, or other chief officer resides;'or if its principal office be not in this State, .and its mayor, president, or other chief officer do not reside therein, wherein it does business.”
Sec. 24al, Ch. 54, serial section 2918, Code 1913, constitutes the state auditor attorney in fact for every foreign corporation doing business in this state, and authorizes him to accept service of process for it. This act is held to be constitutional. State v. Petroleum Co., 58 W. Va. 108. Defendant is a foreign, non-resident corporation doing business in this state, and, having jurisdiction of the cause of action, the court acquired jurisdiction over defendant by the auditor’s acceptance of service of process, which was binding on it. It is not necessary to decide whether or not the court also acquired-jurisdiction over defendant by the service of process upon its agent at Bluefield. Sec. 7, Ch. 124, serial section 4743, Code 3913, provides for such manner of service, but whether the later statute, above referred to, was designed to take its place, so far as it relates to service on a non-resident corporation doing business in this state, is a question which, for the purposes of this case, we need not decide. The pleas did not aver that defendant was not doing business in this state, and were consequently bad.
Overruling defendant’s demurrer to the declaration is also assigned as error. It is claimed that the declaration does not sufficiently aver the act of negligence complained of. We do not think it is open to this objection. It avers that it was defendant’s duty to maintain and operate its wires so as to prevent them from injuring persons lawfully on premises over
Defendant moved the court to set aside the verdict on numerous grounds, but chiefly because it was contrary to law
Defendant contends first, that no negligence is proven, and, second, that plaintiff’s injury was due solely to his own negligence. The evidence is full, clear and uncontroverted to establish the fact that the line had been erected only three or four months before the accident; that it' was skillfully constructed of good material, the kind generally used by power companies; that defendant had inaugurated and maintained a system of inspecting its lines, equal .to that employed by any other company engaged in like business; that a patrolman inspected the wires at least once a week in any event, and oftener if anything was discovered to be wrong; that the particular line in question was examined on two different days the week of the accident, the last time being on the Friday preceding the Sunday on which plaintiff was injured; that the wires were strung upon poles thirty-five feet from the ground; that wire “B”, which carried 88,000 volts, was caused to drop and sag near to the ground on account of the breaking of a section of the insulator attached to the 'arm of the pole supporting it, and to which the wire fastened; that the bursting of the insulator could be accounted for in only one of two ways, either because of a latent defect in the insulator itself, which could not be detected, or because the line had been struck by lightning, which so increased the current as to cause the insulator to burst. Defendant maintains in its transformer house meters which measure the voltage carried by any particular wire, and also a device which registers, automatically, any unusual disturbance of the current on its system of wires, occurring at any particular hour of the day or night; but there appears to be no means of ascertaining that a wire is sagging, so long as the current is uninterrupted, except by personal inspection of the line. It is proven that, about six o’clock Saturday evening, August 9th, there was a severe disturbance of the lines, which was registered by the automatic device at the transformer house. By testing the wires at the transformer house,' cutting off the current and
Plaintiff’s counsel insist that the fact that the wire broke loose from the insulator and sagged near to the ground and was suffered to remain so, from six o’clock Saturday evening 'until the afternoon of the next day, 4:30 o’clock, when plaintiff was injured, is sufficient proof of negligence to support the verdict. In support of their contention they invoke the rule res ipsa loquitur. But that is only a rule of evidence resting on a presumption which may be rebutted by positive proof denying it. Perhaps no better statement of the rule is found than that made by Chief Justice Erie in Scott v. London Dock Co., 3 Hurl, and Col. Excheq. Rep. 600. In that case plaintiff was injured, in a public place, while going from one door of a warehouse to another, by bags of sugar falling and striking him, which defendant’s servants were lowering by means of a crane. Plaintiff proved that he was injured by the bags falling on him, and then rested. The trial court, being of the opinion that that fact alone did not establish neg-
In no case does the law demand more than reasonable care. But reasonable care is a varying, rather than a fixed quantity, and depends upon the character of the business and the degree of danger incident thereto, and the probability of injury-to others from want of care. Hence a degree of care which would be reasonable in one case might, constitute negligence in another. Companies maintaining and operating highly charged electric wires, in places where 'it may be reasonably expected that persons will be exposed to danger therefrom, must exercise a very high degree of care, because a high degree of care, in such case, is only reasonable. But the law does not exact as high degree of care in the maintenance of dangerous machinery or appliances in an unfrequented place, as it does in the maintenance of. such things along or across public highways. The measure of reasonable care in any business is determined by what is usual and customary in that business. Speaking for the court, Judge Buchanan, in the opinion in Bertha Zinc Co. v. Martin, 93 Va., at page 807, says: “Juries must necessarily determine the responsibility of individual conduct, but fihey can not be allowed to set a standard which shall, in effect, dictate the customs or control the business of the community.” See also, Berns v. Coal Co., 27 W. Va. 285; and Titus v. Railroad Co., 136 Pa. St. 618. It can not be said, as matter of law, that reasonable diligence required defendant to inspect its line any oftener than the uneontradicted evidence proves it did inspect it; nor that the breaking of the insulator and the sagging of the wire, and allowing it to remain in that condition, in an out of the way place, for twenty-four hours, was conclusive proof of negligence.
Bach insulator consists of four saucer shaped, porcelain
It is proven that, when the disturbance of the lines was indicated by the device at the transformer house, defendant was diligent in making tests to locate the trouble and repair its line, and thought it had discovered and repaired the only injury, that on the Saltville line. It tested line “B” and found it to be in good working order. It can not be said, as matter of law, that it was negligent in not sending patrolmen over all its lines immediately after the disturbance on Saturday evening. It had no cause to suspect that line “B” had dropped from any of the poles, for its sagging did not interrupt the current. All the foregoing facts, being undisputed, are certainly sufficient to rebut the presumption of negligence arising from the mere sagging of the wire.
Plaintiff’s injury occurred in the state of Virginia, and Ms right to recover depends upon the law of that state. Western Union Telegraph Co. v. Brown, 234 U. S. 542, and’ numerous cases cited at pages 544 and 545. Hence the recent Virginia decisions, relating to actions for negligence, are binding authority on this court, though we are not aware of any distinction between the laws of the two states on that subject. No
‘‘Injury alor.e is not sufficient to support an action for damages avis'ng from the alleged negligence of the defendant. There musí be a concurrence of wrong and injury. If a person does an act which is not unlawful in itself he cannot be made liable in damages for the resulting injury unless he does the aci at a lime or in a manner, or under circumstances which will render him chargeable with a want of proper regard for the rights of others.” N. c& W. Ry. Co. v. Gee, 104 Va. 806. Lane Brothers Co. v. Barnard’s Admr., 111 Va. 680.
Defendant was engaged in a lawful business, and it has proven by uneontradicted testimony that it was exercising reasonable care, measured by the prevailing custom among electrical power companies. The evidence proves that plaintiff’s injury was either due to his own negligence, or was. the result of an inevitable accident. Defendant insists that plaintiff’s negligence is shown by the great weight of the evidence, lie had worked for a short time in a coal mine where electric
"In such case, when the fact testified to and the fact necessary to be proven in order to sustain the verdict of a jury could'not in the nature of things be true, the authorities clearly hold that the verdict should be regarded as against the evidence, and be set aside.”
Thirty-one instructions were asked for on behalf of defendant, fifteen of which were given and sixteen refused, and the refusal to give the sixteen is assigned as error. Very little space is given in brief of counsel to the discussion of in-' struetions, and the particular points of error in respect to them are not pointed out. We do not think it necessary to discuss them seriatim in this opinion, inasmuch as we have already fully discussed the law of the case. It follows from ■yvhat we have herein said, that defendant was entitled to have its peremtory instruction given to the jury. Where the evidence is not sufficient to support a verdict for the plaintiff, if one should be found in his favor, and the court would have to set it aside, it may instruct the jury to find for the defendant. Not being able to see that plaintiff‘can not produce better evidence on another trial, we will reverse the judgment, set aside the verdict and remand the case for a new trial.
Rehearing
We have carefully reconsidered this case on re-hearing and we find no reason justifying any alteration in our former opinion. All the questions discussed in brief of the able counsel are fully considered in the original opinion which we here re-affirm.
Reversed and remanded.
Dissenting Opinion
(dissenting):
I have the greatest respect for the judgment of my associates, but I have been unable to bring myself to the point of concurring in the opinion to be handed down in this case, for two reasons, first, because I think the question whether defendant was negligent in allowing the wire doing the injury to remain out of repair for the time proven, was properly submitted to the jury. That the wire was out of repair and sagging down in close and dangerous proximity to the ground where plaintiff was injured is fully proven, presenting a prima facie case by the rule, res ipsa loquitur. And I do not think the evidence of the defendant to overcome this prima facie case is sufficient to authorize this court to reverse the judgment. In the second place I think the question of the plaintiff’s contributory negligence was properly submitted to the jury. I concede, however, based on some expert or opinion evidence, that some of the physical facts tended to discredit the positive evidence of the plaintiff as to his conduct at the place of his injury with respect to the dangerous wire. But I do not think this evidence was sufficient to withdraw the question from the lawful triers of the facts, the jury.
And I observe as bearing on both propositions that the instrument at defendant’s power house, some twenty four hours or more before the plaintiff was injured indicated physical disturbances on one or more-of defendant’s service lines, and that defendant thereby had warning of this fact, and actually made repairs on one of the lines, but though connected by telephone lines along its whole system with its representatives, it took no pains within the twenty four hours intervening to inspect the wire which injured the plaintiff, and it seems to me it was for the jury to say, from all the facts and circum
For these reasons I would affirm the judgment.