68 W. Va. 694 | W. Va. | 1911
In an action for personal injuries the court below, on its motion directed the jury to find for the defendant, and the jury found accordingly; and to review the judgment of nil capiat thereon, plaintiff brings error to this Court.
The correctness of the judgment below depends upon the question whether the evidence, adduced before the jury proved, or in an appreciable degree tended to prove, such a case, made by'the pleadings, as entitled plaintiff to have the evidence submitted to the jury on any issuable fact, or whether the facts proven presented but a question of law for the court, as the court below necessarily determined in directing the verdict.
It is alleged and proven that plaintiff sustained the injuries of which he complains at Lester, in Raleigh county, the terminus, so far as passenger traffic is concerned, of a branch line operated by defendant company and connecting with its main line at Prince station. It is also alleged that at the time plaintiff sustained his injury he had become a passenger on the defendant’s railway train, and as such, entitled to all the care and protection which the law imposes upon a carrier of passengers. The court below, however, on certain facts proven, and as to which there is no conflicting evidence, held that at the time plaintiff received his injury, the relationship of carrier and passenger had not begun; that the plaintiff was then a mere intruder, having gone upon the train, without the knowledge or invitation of the defendant or of its employees in charge of the train, and before the train had been prepared to receive passengers, which was well known to plaintiff, and at a place where the defendant was not accustomed to receive passengers. In this conclusion we think the court below was clearly right, and that the verdict was properly directed.
The facts are that after the defendant’s train had reached
The proposition can not be questioned that when one has been received as a passenger the utmost care which human skill, diligence and foresight can provide to protect him from danger is required of the carrier, and the slightest negligence on the carrier’s part is regarded gross negligence. This proposition was lastly affirmed in Kennedy v. C. & O. Ry. Co., 70 S. E. 359, decided ¡at the present term. But as a proposition of law applicable to this case we think that, where one intending to become a passenger, and while the work of preparing the train on which he intends to take passage is going on, necessitating dangerous switchings and couplings of the cars, of which he has notice, and at a point where the carrier is not accustomed to receive passengers, and without notice to or invitation by any officer or agent of the carrier with authority, enters one of the coaches, and in attempting to go from one coach to another, is injured by a jolt or impact given to the coaches in mailing such switches or couplings, the carrier is not liable to him in damages for his injuries thus sustained. Moore on Carriers, 549; St. Louis S. W. Ry. Co. v. Morrow, (Tex.) 93 S. W. 162; Hannibal & St. Jo. Ry. Co. v. Martin, 11 Ill. App. 386; Dewire v. Boston &c R. R. Co., 148 Mass. 343; Choate v. S. A. and A. P. Ry. Co., 90 Tex. 82; Badley v. Columbia Ry. Co., 44 Ore. 332; Illinois Central R. R. Co. v. Green, 81 Ill. 19; 4 Elliott on Railroads,
Finding no error in the judgment below it will be our duty to affirm it, and it will be so ordered.
Affirmed.