38 W. Va. 645 | W. Va. | 1893
Lead Opinion
This was an action of trespass on the case, brought in the Circuit Court of Jackson county on 22d March, 1892, by Poling, as administrator of C. Swain, against the Ohio River Railroad Company, for causing the death of his intestate, C. Swain, which resulted in a judgment for plain-tiIF for three, thousand dollars, from which defendant has obtained this writ of error. The assignments of error, which were as follows, will be considered somewhat in the order made.
1. The court erred in overruling defendant’s demurrer to the declaration. The declaration contains three counts, and the demurrer is to the declaration and to each count. In Hawker v. Railroad Co., 15 W. Va. 628, it is held that a declaration against a railroad company for negligently and wrongfully killing the plaintiff’s cattle on its track need not state the acts of omission or commission which constitute the negligence and wrong. It is neither usual nor necessary in this state to specify the acts or omissions of defendant which constitute the negligence. This is a matter of proof, and need not be specified in the declaration. It was not specified in the declaration in the case of Blaine v. Railroad Co., 9 W. Va. 253, nor in Baylor v. Railroad Co., Id. 270; and the declarations in these cases were held good on demurrer. The declaration is good, if it contains the substantial elements of a cause of action; and the demurrer must be overruled, unless there be omitted from the declaration something so essential to the action that judgment according to law and the very right of the cause can not be given. But the declaration must set forth the duty which has been neglected, and aver the neglect. Railroad Co. v. Starks, 38
The first, count of the declaration in the case before us avers, that plaintiff’s intestate lost his life by reason of the negligence of defendant in failing to keep its mail-crane in safe condition, decedent being at the time a traveller on the highway, and without fault on his part; giving the circumstances with great particularity. Necessary implications of fact and matters of law need not be averred. It also avers, that it was defendant’s duty to keep at all times a proper and safe mail-crane at Douglas station, and that by the neglect of such duty defendant caused the intestate’s death ; that is», defendant’s duty to decedent as a traveller on the highway.
The second count avers the duty of defendant to keep i.ts said mail-crane and appliances and railroad track safe and free from danger to the travelling public, and to all persons rightfully at or near said crane and railroad ; that defendant neglected such duty; that in consequence thereof decedent lost his life while on and near the public road, and without fault on his part.
The third count is substantially the same. The averment that the father, Newman Swain, sustained damage by reason thereof, may be regarded as impertinent and therefore may be disregarded as surplusage, as he is not the plaintiff. And the declaration concludes in the usual form : “And thereupon the said plaintiff says that by reason of the premises,” etc., “and by force of the statute in such cases made and provided, an action hath accrued to him, as such administrator as aforesaid, to have and demand of and from the said defendant, for and by reason of the grievous wrongs and injuries in said three counts mentioned, damages to the amount of ten thousand dollars, for the uses and purposes in said several counts mentioned, and therefore he brings this suit.”
It will be seen by section 10 that to the state shall accrue all the personal estate of any decedent of which there may be no other distributee. It may be that the state would not take ; in which event it would certainly not be improper to aver that there are distributees, but not necessary, because it must he assumed that kindred exist, and it need not be averred. Cooley, Torts (2d Ed.) top p. 317. The demurrer was properly overruled.
In this case the court has certified all the evidence under section 9, e. 131, Code, from which the material facts appear to he as follows : In 1880 the defendant company built its road along the Ohio river, through the county of Jackson, where the death of Charles Swain, the subject matter of this suit, took place. There was an old county road of long standing leading from Douglas landing in Grant district on the Ohio river back to Murrayville on the turnpike. By order of 13th of April, 1886, the County Court of Jackson county “grauted its consent to the said company to construct, maintain, and operate its railroad across any highway or public road in said districts of Eavenswood, Grant, or Union, in this county, when necessary to do so, but upon the following conditions: That if said railroad company shall, by the building of its said road or otherwise, obstruct any public road in this county, it shall put the road obstructed in as good condition at every crossing of said railroad as it was before the obstruction, and in all other respects according to law.”
In the fall of 1886; the construction company building the railroad along the Ohio river at the point called “Lone Cedar,” or “Douglas Landing,” changed or the old county-road, moving it down about one hundred feet, made a
The road made by the construction company, turning to the left., and the new road, turning to the right, separate at the railroad crossing, and come together at the landing-on the beach; the distance being only seventy five yards. The crossing over the track is fifteen feet wide. On the river side of the track, and eight feet below the sixteen foot crossing, the railway company erected a platform and mail “crane,” but no other building, called “Douglas Station,” where, by means of a “mail catcher” on the car, mail pouches could be taken on without stopping or slackening th.e speed of the train. The mail pouches and the mail catchers attached to the postal cars for taking up mails without stopping the trains are furnished by 'the United States government mail-equipment division of the post-ofliee department; but the mail cranes are constructed, erected, and are to be kept in good order, by the railroad companies, at their expense. The store where the Lone Cedar post-office was kept wras on the hill side from the railroad, about one hundred and eighty or one hundred and ninety feet distant.
The deceased, Charles Swain, was an intelligent, sober, industrious, strong, healthy young man ; twenty years old, lacking three months; living with his father, Newman Swain, about one and a half miles back in the country
The two young men then walked across .the platform hack of the crane, next the river, and stopped on a rise or bank fifteen feet from the upright of the mail crane. The mail sack was'hanging on the crane when they came up, and they knew that the mail clerk on the approaching train would attempt to catch the sack. The lower arm had been struck by the catcher, and knocked off, about two weeks before. When the mail car came up, the postal clerk caught the mail pouch hanging on the crane, the train running twenty or twenty five miles 'per hour, but, on making the catch, struck the lower arm of the mail crane with the hook of the catcher, knocking ofi the upper part of the lower arm, and hurling it forward, and around against the left breast of young Swain with such force that he took a few steps, fell and died in a few seconds. The piece of the lower arm broken off, and thrown around and back against young Swain, was large at one end, tapering to a feather edge at the other, which was the explanation given by a witness of the direction in which the blow by the catcher threw it.
The decedent had no business with the train; was there simply as a looker-on at the passing mail train. lie was not traveling on, or in any way using, the county road. But one of the questions of fact, about which a considerable part of the testimony was given, was whether the point,
There is also a diagram showing the location of the mail-crane, and also a groat deal of evidence as to whether it was a safe and proper appliance. In the present attitude of the case, taking it most strongly for plaintiff, and confining it to plaintiff’s evidence, after the verdict of the jury, we "must, regard it as not an appliance in complete and proper order, to the full measure of what was required on behalf of anyone to whom the company owed the duty to see that such appliances under their own control were in full and complete and proper order; otherwise, it would not have been possible to strike the lower arm of the crane with the hook of the catcher. The thing itself speaks, and shows that if the distance between the arms had been greater, or the catcher had been shorter, it would have been impossible for the catcher, no matter at what angle raised, to have struck the lower arm; but it cannot in any proper sense be called a nuisance. It is also shown that if the catcher on the mail car is raised to a horizontal position, or anything near that, it passes through without danger. This is also shown by the very many times it was successfully used without accident, although the lower arm had been struck about two weeks before. The mail agent who made tlny-catch was a young man without experience, who commenced on October 8, 1888, eighteen days before the accident happened; and in the second week of his run-tying on the train the accident occurred. The evidence
But one instruction was asked by and given for plaintiff, and to this defendant excepted. For defendant the court gave instructions Nos. 1, 2, 3, 6, 7, and 8, but refused to give defendant’s instructions Nos. 4 and 5, and defendant excepted. Plaintiff ⅛ instruction is in the words and figures following :
“The jury are hereby instructed that if they believe? from the evidence in this case, that the decedent, 0. Swain, at the time that he was struck by the piece of the arm of defendant’s mail crane, was on the highway loading from a point called ‘Douglas Landing’ to another point on the Murrayville road, then at the time said Swain was so struck he can not be considered or held to have been a trespasser on defendant’s premises.” The following are the instructions which were given for defendant:
“No. 1. The jury are instructed that it is the duty of "the plaintiff to make out his case by a preponderance of the evidence.
“No. 2. The jury are further instructed that negligence is the doing of something which, under the circumstances, a reasonable person would not do, or the omission to do something in discharge of a legal duty which under the circumstances, a reasonable person would do, and which act of commission or omission, as a natural consequence directly following, produces damages to another.
“No. 3. The jury are further instructed that if they believe, from the evidence, that the deceased, C. Swain, was using the railroad track or its right of way as a foot path for his own convenience, and that he was not so using said track or right of way at a lawful crossing, and that the said C. Swain received his injury, while he was so using said track or right of way at a place other than a lawful crossing, by the breaking of a mail crane belonging to the Ohio River Railroad, that the plaintiff' can not recover in this case, unless they believe, from the evidence, that 'the defendant was guilty of wanton or gross negligence.
“No. 7. The jury are further instructed that if they believe, from the evidence, that the breaking of the lower arm of the defendant’s crane was caused by the failure of the postal clerk to properly adjust the mail catcher on the postal cars for the purpose of catching the mail sack, then the defendant is not liable, and they should find for the defendant.
“No. 8. The jury are further instructed that if they believe, from the evidence, that the deceased, C. Swain, was a person in full possession of his senses of seeing and hearing, and also in full possession of his'mental faculties; and if they further believe, from the evidence, that at the time of the accident the said Swain knew that there was danger in standing about the mail crane; and ifthey further believe, from the evidence, that said mail crane, with the mail sack adjusted thereon, was in plain view, and seen by said Swain ; and if they further believe, from the evidence, that the defendant knew that a train of cars was approaching, or would soon approach, the place where said crane was standing; and if they believe, from the evidence, said Swain knew the mail sack would be caught, or an attempt would be made to catch it, by the mail clerk on the train ; and if they further believe, from the evidence, that said C. Swain visited the vicinity of said mail crane from curiosity, or for personal convenience, without any reasonable duty calling him there — that in such case, even although they may believe, from the evidence, that at the time of the accident the deceased was standing in a public road, yet he was guilty of contributory negligence by so standing near a known place of danger, and the jury should find for the defendant.”
The following are the instructions which were asked for by defendant and refused by the court:
“No. 4. The jury are further instructed that if they believe, from the evidence, that the death of C. Swain was caused by the breaking of the lower arm of the mail crane of the defendant; and that if they further believe, from the
“No. 5. The jury are further instructed that if they believe, from the evidence, that the deceased, 0. Swain, was at the time of his death on and about the defendant’s platform and mail crane, not as a passenger, or upon any business connected with the railroad company, but merely there for his own convenience or curiosity, or for personal enjoyment, the defendant owed to him no active duty to look out for his protection; and hence, if he was killed by the breaking of the mail crane caused by a passing train, the plaintiff can not recover on the theory that the defendant has been guilty of negligence by a failure to discharge towards him a legal duty.”
The order of the County Court of Jackson, as we have seen, permitted the railway company to construct, maintain, and operate the railroad across this public road on condition that, if they obstructed it, it should put the public, road in as good condition at the crossing as it was before. Put the road made by the company from the crossing down to the landing at the river ivas not accepted; but Mr. Peters, the road-surveyor of the district, notified the parties making it that he objected to it at that place, and would not receive it; nor was it ever received or assented to by him or the county authorities; and after it washed away next to the river, in a few months thereafter, the road from the crossing turning to the right, and going down to the landing, was made by Mr. Hall, the landowner, with the sanction of the road surveyor, and has been worked and used and kept in order by the county as the public road ever since, which includes the time of the accident.
.By section 21, c. 43, (lode, the surveyor may change any county road in his precinct with the consent of the owner of the land, and, “when any road is altered, the former road
Under this state of the evidence, the court can not say. that plaintiff’s instruction should have been refused as being abstract, and wholly without evidence on the point; for the two roads coincide at the crossing, aud coincide in part opposite where the decedent was standing.
Second error assigned by plaintiff: In admitting the parol evidence of Dr. Davis and others to prove that deceased was in the public road at the time of the accident.
It is true that mere user of a road will not make it a public road, under Code, s. 31, c. 43. The user must be accompanied either by an order of the County Court recognizing it in some way as a road, or the road must bo worked by the road surveyor as such. Still, there was an attempt in this case to show a recognition in both these ways; and I do not think it was error to permit witnesses to testify that it was made by the construction company as a substituted part of a public road, and was used by the public as such for sometime.
Third error assigned by plaintiff: In permitting the witnesses D. E. King and others to testify from the plat, Exhibit A. with the record. This was a map or diagram of the place of the accident, showing the relative positions of the railway mail crane, roads, and crossing, and the place where the accident happened, where the young man stood. Though cx parte, it was shown to be correct by a witness who made it, and must have been useful for the understanding of the testimony, and almost indispensable
Fourth error assigned by plaintiff*: In admitting illegal evidence, and excluding competent evidence, against the objections of defendant, “as noted in the transcript of the evidence.” Under section 9, c. 131, all the evidence, and not the facts, is certiñed. The transcript of the evidence is voluminous, and it shows many exceptions “noted” to evidence during the progress of the trial; but no bill of exceptions was taken to such rulings, and the exceptions are therefore taken as waived. It would involve great labor, indeed, to go over a verbatim report of all the evidence as given in, and pick out and consider all exceptions “noted” to questions asked and answers given, permitted, or overruled. The law does not contemplate so easy and compendious a mode of bringing up for review all such rulings of the lower court, nor one so general and indefinite in specification, and involving so much labor on the part of the appellate court. See Gregory’s Adm’r v. Railway Co., 37 W. Va. 606 (16 S. E. Rep. 819). It must in some way be so set out as to bo capable of being easily found and identified.
I have already given the main facts of the case with some fullness of detail, and because the plaintiff* comes to us with a verdict in his favor, from his evidence alone, except
The principles and rules of law to be applied are involved in the question : Did'the railway company owe to decedent any duty the violation of which by the company was the direct and immediate cause of his death, and what points of law, with reference to the rulings complained of, spring up out of the application to the facts of such principles and rules? The principles may be said to be few and simple (the common principles of right and wrong, public policy, and general convenience of the day); but the rules based upon'them, and formed by generalizing, more or less, the points decided in the very many cases, are quite numerous and complex. These rulings relate to the instructions asked by defendant, and refused; its motion for a verdict on plaintiff’s evidence, and for a new trial, both overruled. These, as far as may bo, will be considered together.
The postal clerk who made the catch from the running train was in the service of the United States government; was riot in the employ of defendant. lie was not the servant or agent of the company; not hired or paid by them, nor subject to their control. A postal clerk is not an employe of the railroad company (Mellor v. Railroad Co., [Mo. Sup.] 14 S. W. Rep. 758); and a railroad company is not responsible for the negligent acts of postal clerks or agents upon its trains, Muster v. Railway Co., 61 Wis. 325 (21 N. W. Rep. 223) except, under circumstances which need not now be discussed, Snow v. (Railroad Co., 135 Mass. 552) and the reason is, the postal clerk is neither the servant nor the agent of the railway company; it has nothing to do with his selection or employment, has over him no supervision or control, and has no power to discharge him; so in no sense could his act be said to bo'the act of the company,
The decedent was a voluntary licensee, one without invitation, standing on the side of the defendant’s right of way
In Woolwine’s Adm’r v. Railway Co., 36 W. Va. 329 (15 S. E. Rep. 81) it was held that sucha licensee subjects himself to the risks and perils incident to the place he is in as such licensee, and that no duty is imposed upon the owner or occupant to keep the premises in safe and suitable condition for such person; and the owner is only liable for such willful or wanton injury as may be done to the licensee by the gross negligence of the railroad company, its agents or employes.
Was there gross negligence on the part of the company in this case ? For such contention there is no foundation that I c^i see, unless the mail crane was o'f such a character as to be a common nuisance to those using, or waiting to use, the highway, at. the crossing. We have already seen that such was not his business there. lie was not in the road at the time, had not used it, and the only evidence — that of his companion — shows that as he stepped back there fifteen feet from the mail crane, to what was evidently supposed to he a safe place, to see the mail train go by?-,’ and, we may reasonably infer, to see the catch made of the mail pouch. Hut, from this evidence, can we fairly say that'the mail crane, which it was the duty of the company to put up properly and keep in repair, was a common nuisance?
Gross negligence having been branded as an unmeaning,
To say that it is but the violation of the duty of ordinary care required in the case is hut putting two things of different degrees in one class, by using “ordinary care” as a generic term; and the term “ordinary care” has still to he graded and'divided by the jury by the conduct of the prudent man under the. circumstances, putting themselves in his place, and measuring what is required of him by such circumstances, before it can be applied. Thus supplemented by a sliding scale, and thus made adaptable to measuring in such practical, but indefinite way, the care required, it is found, no doubt, to be more useful and convenient in the vast majority of modern cases. Nevertheless, this broad and simple classification is, with us, still regarded as useful and convenient in two or more classes of cases. The terms “utmost care” and “slightest negligence,” “slight care” and “gross negligence,”' are still applied, especially in two classes of cases : The former, to common carriers of passengers, as in Farish v. Reigle, 11 Gratt. 697 (decided in 1854, forty years ago); Railroad Co. v. Sanger, 15 Gratt. 230—both still leading authorities with us. In this class of. cases the common carrier owes to the passenger the duty of exercising more than ordinary — the utmost — care. The latter, to voluntary licensees and trespassers. Woolwine’s Adm'r v. Railway Co., 36 W. Va. 329 (15 S. E. Rep. 81); Spicer v. Railway Co., 34 W. Va. 514 (12 S. E. Rep. 553). In this class of cases the owner aud occupant does not owe the duty of exercising ordinary care; but slight care, so as not to cause wanton injury, and thereby be guilty of gross negligence, that discharges the only duty he owes.
As appears by the event in this case a step or two further to the right would have put this unfortunate young man in the highway, and, as it happened, out of harm’s way. 13ut I do not see how he can be charged with contributory negligence, except in a very technical or artificial sense. No one would have been likely to anticipate or foresee the danger. He merely assumed the risk, whatever it might be. The risk, perhaps, was not less of his being struck by lightning at that place during a thunder storm; so that I do not see how it can bo said that ho was guilty of contributory negligence in any proper, or at least natural, sense.
Did this mail crane unlawfully obstruct or render dangerous this highway and crossing to the extent of making it a nuisance? The only description made of it, and criticism made upon it, on the part of plaintiff’s witnesses are made by Mr. Vosburg, evidently a correct and very intelligent man, a civil engineer by profession, who was on the ground, and examined and made his measurements thirteen months after the accident happened, who says, in constructing cranes: “I have no experience at all.” “What do you know about them ?” “Not anything at all.” He said, that he had observed others, but this was the only one he ever measured or directed his attention to particularly ;— that you could not change the distarme between the arms, parallel, without changing the length of the mail pouch; —that the post-office department made the specifications for both sacks and arms, and furnished the pouches and the catcher ; — that if the sack is changed and made longer, the outer end of the lower arm must be lowered, and the fastened end ought to be. In answer to the question, “Is it possible for a mail clerk to make these catches in the condition in which you found it?” answered, “Possibly? yes, sir; because the evidence is that be made them for a long time while in that condition.”
Defendant’s Assignments of Error Nos. 5, 6, 7, 8, and 9. 'Exception No. 7, to the giving of plaintiff’s one instruction, have already been considered. It can not bo said that there was absolutely no evidence tending in any appreciable degree to show that the decedent was not a trespasser or voluntary licensee on defendant’s premises; for ho was standing in a place that had once boon dug and used as a road, though afterwards altered by the road surveyor, and thus discontinued. For a still stronger reason, defendant’s motion to direct a jury to return a verdict for defendant was properly overruled. Where the party is guarantied the right of trial by jury, especially in cases of nogligeuce, which are, for the most part, peculiarly cases of fact, and therefore peculiarly within the province of the jury, such direction is only proper in a few cases so plain that there is no room for two opinions. It stands on ground wholly distinct from a motion for a new trial; though the latter, in one of its reasons, often comprehends the former — as where the case is wholly without evidence as to some essential fact. That it saves time, trouble, and expense, is sometimes all that can bo said in its favor.
The six instructions given for defendant he can not complain of, and they need not be considered, except as to any bearing they may have upon the question of the refusal of instructions Nos. 4 and 5. As a general rule, it may be affirmed that omissions, unless when involving the nonperformance or mal-perfornnmce of a positive duty, are not the subject of suit. Whart. Nog. § 82. But otherwise, when the omission is the defect in the discharge of a legal duty ; for it is of the essence of negligence to omit to do something that ought to be done. Id. § 88. Instruction No. 4 was properly refused. If the negligence of the defendant in failing to construct a proper crauewas the proximate cause of the injury to the plaintiff, and it owed the decedent the duty to see that it was a safe appliance, it is of no consequence whether it be omission or commission. See Harriman v. Railway Co, 45 Ohio St. 11 (12 N. E. Rep. 451) and other cases cited; Beach Contrib. Neg. § 25, note 2. It. depends on the question whether defendant owed decedent any duty or not, under the circumstances; and although the tiling complained of may help to determine that question by reason of its nature, as that it was an omission, yet that does not furnish the true criterion of liability, and the plaintiff might still be entitled “to recover under the evidence in this case.” Ho hypothetical state of facts being stated, this instruction treats -the question of negligence as a question of law, to be determined by
Plaintiff’s instruction No. 5 was also properly refused. While apparently putting the fact of decedent being on or about defendant’s platform and mail crane as the hypothetical fact, inter alia, out of which the court is to tell the jury the given legal point arises, such fact is really assumed; and the fact that he was not there as a passenger etc., but for his own curiosity etc., is the real hypothetical fact of the instruction. “About defendant’s platform and mail crane?” Where is that? The counsel on both sides have made a difference of ten or twelve feet in the location of the county-road, near and about the platform and mail crane, the crucial point in the case; and both locations are equally comprehended in the fact assumed by the court, and may be said to be the one controverted fact. In such a case, “around and about” is also too indefinite. If tbo instruction was intended to raise the point that it made no difference whether the place where, the young man stood was on the company’s right of way, and not in the county road, or in the county road, and not on the right of way, then it is obscure and confusing, and should have been framed differently. Mayor etc. v. Poultney, 25 Md. 34; Railway Co. v. Snyder, 24 Ohio St. 678. See, also, Morse v. Gilman, 18 Wis. 385; Hughes v. Monty, 24 Iowa, 501—all cited to sections 466, 467, Wells, Law & F. And an indirect assumption of this fact, as in this case, is condemned on the same principle; for it also throw's the weight of the case upon a part of the evidence or facts, instead of putting it upon all. See Wells, Law & F. § 477; Roots v. Tyner, 10 Ind. 87, cited. These things being believed from the evidence, the jury is told the defendant oved decedent no active duty to look out for his protection. Then the instruction adds; — and hence, if he was killed by the breaking of a mail crane caused by a passing train, the plaintiff can not recover on the theory that the defendant has been guilty of negligence by a failure to discharge towards him a legal duty.”
I think the instruction, as a whole, calculated to confuse
I regard this ease as ruled by the law as laid down in Woolwine's Adm’r v. Railway Co., 36 W. Va. 329 (15 S. E. Rep. 81) and the case, just cited, of Spicer v. Railway Co., and do not think it can he distinguished as to the controlling elements of law and fact, or withdrawn from their decisive influence.
I need scarcely add, from what has already been said, that the facts, taken at their strongest, according to the rules in such cases, do not justify the verdict. The evidence of plaintiff) taking it all as true, with all fair and reasonable inferences, together with the uucontradicted evidence of defendant, proves nothing from which the jury could reasonably infer that defendant had violated any duty which it owed to plaintiff’s intestate, or jvas guilty of any negligence for which plaintiff'is entitled to recover, but is plainly insufficient to warrant such finding. The verdict is against the law of the case upon the facts proved, and must therefore be set aside. Judgment and verdict set aside, and new trial awarded. Reversed and remanded.
Rehearing
ON REHEARING
This unfortunate young man, when so unexpectedly struck by the sliver from the lower arm of the mail crane,
The company made no change to endanger him after he came. It owed him no duty that was violated. For although, in the present attitude of the case, I take for granted that the mail crane was not of the best construction, but must have been in some respect defective, yet it was not a public nuisance; for it had been frequently used with safety, and successfully, both before and immediately after this accident, without harm or danger to any one, unless it was dangerous to the one using it. It was a case in which the unexpected happened, and its liability to happen could not be forseen, and is only proved by the actual happening [see Richards v. Rough, 53 Mich. 212 (18 N. W. Rep. 785) Sjogren v. Hall, 53 Mich. 274 (18 N. W. Rep. 812) Cooley, Torts, 92, note 1] and therefore a case of damage without injury; at least, so far as defendant is concerned. Moreover, the one who made the catch, knocking the sliver off the lower arm of the mail crane, was the mail agent of the United* States government, not in the employ or subject to;the orders or under the control of defendant, and, if there was any negligence at all, it was his inter-
Here the verdict is against the law of the case upon the facts proved; and is therefore set aside, and a new trial awarded.