42 W. Va. 333 | W. Va. | 1896
On the 7th day of January, 1890, an action of trespass on the case was instituted in the Circuit Court of Ohio county by William L. Reese, an infant, who sued by his next friend, John M. Reese, against the Wheeling & Elm Grove Railroad Company, claiming fifteen thousand dollars damages for injuries received by the said William L. Reese, while acting as an employe of the said defendant, by reason of its negligence. A demurrer was interposed to the plaintiff’s declaration, which -was overruled, the defendant pleaded not guilty, and issue was thereon joined. An amended declaration was filed, to which the defendant demurred, which demurrer was overruled. The ease was twice submitted to a jury without obtaining a verdict, and on the 16th day of April it was again submitted to a jury, and resulted in a verdict for the plaintiff for nine hundred dollars.
During the trial of the case before the jury, certain interrogatories were propounded to them, and answers returned thereto, which interrogatories and answers read as follows: “(1) Was the plaintiff’, Reese, at the time of the accident, of sufficient age and intelligence to understand the circumstances in which he was placed, and to appreciate the danger of the employment in which he was engaged? Yes. (2) Was the accident caused by reason of a defect in defendant’s railroad track? Yes. (3) If the accident ivas caused by reason of a defect in defendant’s railroad track, did plaintiff know of such defect? No. (4) Was the plaintiff, Reese, negligent in riding upon the truck on which he was riding at the time of the accident? No. (5) Was the plaintiff’, Reese, riding in a standing position, upon the truck at the time of the accident? Yes. (6) If the plaintiff, Reese, was riding in a standing position on the truck at the time
Whereupon the defendant, by its attorneys, moved the court to set aside the verdict of the jury, and grant a new trial of the issue herein, because (1) certain matters of evidence were admitted against the objection of the defendant;
The instructions given at the instance of the plaintiff, and the instructions asked by the defendant, read as follows:
Plaintiff’s instruction No. 1: “The jury are instructed that it is the duty of the railroad company, when it furnishes transportation to its employes in cars from one point of its road to another, to provide a reasonably well constructed and safe track, to furnish well constructed and safe cars for the use of such employes, and to exercise continued supervision over the same, and keep them in good and safe repair and condition; and if it fails to do so, and suffers its track or its cars from any cause to become dangerous and unsafe, and this condition is known to the company, or to any servant to whom it may have delegated the performance of these duties, or might have become known to it or to such servant by the exercise of reasonable care and diligence, and injury results to one of its servants, not having such delegated power, without fault on his part, while in the performance of his duty, the company is liable for damages.”
Plaintiff’s instruction No. 2: “The court instructs the jury that although they may believe, from the evidence in this case, that the plaintiff, Reese, in going upon the truck car referred to in the evidence, and standing there, was guilty of negligence, and thereby contributed to the injury
Plaintiff’s instruction No. 3: “The jury are instructed, upon the subject of contributory negligence, that although they may find, from the evidence, that the plaintiff was guilty of negligence, yet if the jury find that the injury would have happened just the same, although the plaintiff had been in no wise negligent, his negligence would not prevent his recovery; or if the defendant, after discovering the dangerous exposure of the plaintiff, refused or neglected to observe any care or precaution to prevent the injury, it will be held liable.”
Plaintiff’s instruction No. 4: “When the plaintiff entered into the employment of the defendant railroad company, he assumed all the ordinary and usual risks attending the employment, but does not assume the risk of negligence on the part of the company.”
Plaintiff’s instruction No. 5: “The jury are instructed that the defendant railroad company was bound to take all ordinary and reasonable precautionsfor the safety of the laborers employed by it on its tracks, including the plaintiff'.”
Plaintiff’s instruction No. 6: “The jury are instructed that, in determining what would be negligence on the part of the plaintiff, they will consider how far the plaintiff had a right to rely upon the care and superior knowledge of the employer, and reference must be had to his means of knowledge of the structure or machinery and processes and work upon which he is employed; also, the fact that men whose business is the lowest form of human laborare not given to thought and reflection and foresight.”
Plaintiff’s instruction No. 7: “The jury are instructed that it is immaterial what was the custom of the defendant as to running its trains, unless such custom was brought to the knowledge of the plaintiff.”
Plaintiff's instruction No. 8: “The jury are instructed
Plaintiff’s instruction No. 9: “The jury are instructed that, with respect to contributory negligence on the part of the plaintiff', the burden of proof is on the defendant.”
Plaintiff’s instruction No. 10: “The jury are instructed that, if they find the defendant guilty, they are, in estimating the damages, at liberty to consider the health and condition of the plaintiff before the injury complained of, as compared with his present condition in consequence of said injuries, and whether said injury is in its nature permanent, and how far said injury is calculated to disable the plaintiff from engaging in those pursuits and employments for which, in the absence of said injury, he would havebeeu qualified, and also the physical and mental suffering to which he was subjected or may be subjected by reason of said injuries, and to allow such damages as, in the opinion of the jury, will be fair and just compensation for the injury which the plaintiff has sustained.”
To the giving of each of these instructions the defendant objected, but the court overruled its objections, and gave the said instructions, and each of them, and the defendant excepted. The defendant then moved the court to give to the jury the following instructions:
Defendant’s instruction A: “The jury in this ease will return a verdict in favor of the defendant.”
. Defendant’s instruction No. 1: “The burden is upon the plaintiff'of proving, not only that the defendant was negligent, but also that its negligence contributed to the plaintiff’s injury. If the jury believe, from the evidence, that there was negligence of the defendant which may not have
Defendant’s instruction No. 2: “The jury are instructed that the mere fact that an injury was received by the plaintiff, Reese, raises no presumption of negligence on the part of the railroad company.”
Defendant’s instruction No. 3: “If the jury believe that the plaintiff, Reese, prior to the accident, was instructed by the defendant or its foreman not to ride upon the truck upon which he was riding, at the time of the accident, or not to ride upon the said truck in a standing posture, and if they further believe that the injury to him resulted from his disobedience of these orders, then he can not recover in this action.”
Defendant’s instruction No. 4: “If the jury believe, from the evidence, that the defendant’s track, at the point where .the accident oceun’ed, was defective, and that the injury to the plaintiff resulted from that defect, those facts raise no presumption of negligence on the part of the railroad company. The plaintiff can not recover unless he proves, by a preponderance of the evidence, in addition to these facts — ■ First, that the railroad company knew of such defect, or might have known it by the exercise of reasonable care; and, second, that the plaintiff', Reese, was himself ignorant of such defect, and had not equal means of knowing it. If, therefore, the jury believe that the defect existed, and that the railroad company knew of it, but if they further believe that the plaintiff, Reese, also knew of this defect, or had equal opportunities with the other servants, of the railroad company of knowing of it, the jury must find for the defendant.”
Defendant’s instruction No. 5: “If the jury believe, from the evidence, that the defendant habitually ran the train, composed of an engine and two trucks, on which the
Defendant’s instruction No. 6: “If the jury believe, from the evidence, that the truck on which the plaintiff was riding at the time of the accident was of insufficient weight, or was otherwise unsuitable for the purpose for which it was being used, and if they further believe that the defendant was negligent in using such truck for that purpose, yet if they also believe, from the evidence, that the plaintiff, Beese, knew, or had the means of knowing, the character of said truck, and that he did not complain of or object to the same, then he can not recover in this action upon the ground alone of any such insufficiency in the weight of the said truck, nor merely by reason of the fact that the said truck, was unsuitable for the purpose for which it was being used.”
Defendant’s instruction No. 7: “If the jury believe, from the evidence, that the plaintiff, Beese, was himself negligent, and that his negligence directly contributed to the injury of which he complains, then the jury must find for the defendant, although they may believe, from the evidence, that the defendant was also negligent.”
Defendant’s instruction No. 8: “If the jury believe, from the evidence, that the plaintiff, Beese, was, at the time of the accident, old enough and sufficiently intelligent to understand the circumstances in which he was placed, and to appreciate the danger of the employment in which .he was engaged, then the fact that he had not arrived at the age
Defendant’s instruction No. 9: “If the jury believe, from the evidence, that it was dangerous for the plaintiff, Reese, to ride upon the truck on which he was riding when the accident occured, and dangerous for him to ride thereon in a standing position, and if they further believe that such danger was obvious to the plaintiff", and was understood and appreciated by him, the fact that the defendant’s foreman may have seen the plaintiff, immediately prior to the accident, standing upon the said truck, and may not at that time have ordered or warned him not to ride thereon, gives the plaintiff no right to recover in this action because of such failure to so warn.”
Defendant’s instruction No. 10: “If the jury believe, from the evidence, that the defendant’s track was defective, and that the accident resulted from such defect, and if they further believe that both the defendant and the plaintiff", Reese, knew of the defect, they must find for the defendant, unless they further believe, from the evidence, not merely that the plaintiff" had ground to believe that the railroad company would immediately repair such defect, but also that the railroad company had made some promise, express or implied, to the plaintiff, Reese, that it would repair the said defect. If the plaintiff", Reese, continued, after knowledge of the defect, to work for the company as usual, without exacting from the company a promise to repair the said defect, he can not recover by-of such defect.”
Defendant’s Instruction No. 11: “If the jury believe, from the evidence, that the accident in this case resulted from the fact that a stone was casually upon the defendant’s railroad track at the time of the accident, the burden is on the plaintiff to show that the defendant was negligent with respect to such stone; and he can not recover without proving, by a preponderance of the evidence, either th,at the defendant knew that such stone was upon the track in time to have removed it before the accident, or that it might have had such knowledge if it had exer
Defendant’s instruction No. 12: “If the jury believe, from the evidence, that itTwas dangerous for the plaintiff, Reese, to ride upon the truck on which he was ridiug when the accident occurred, and dangerous for him to ride there in a standing position, and if they further believe that such danger was obvious to the plaintiff, and was understood and appreciated by him, the fact that the defendant’s foreman may at times have ridden in like manner upon said truck, and that the plaintiff may have seen him so riding thereon, gives the plaintiff no right to recover in this action.”
Defendant’s instruction No. 13: “Whether or not the defendant furnished and kept in repair reasonably suitable safe track and cars, the plaintiff is not relieved from the duty to heed reasonable precautionary warnings given for his safety, if there were such warnings so given, nor from the discharge of his duty to take care to protect himself from harm, and not wilfully encounter danger. And if the jury believe, from the evidence, that the plaintiff failed to heed such warnings, or to discharge such duty, and that such failure contributed to the injury, the jury must find for the defendant.”
And the court gave to the jury, for the defendant, its said instructions Nos. 1, 2, 3, 5, 6, 8, 9, 11, and 12. The court refused to give the defendant’s said instruction marked “A,” and to this action of the court in refusing to give this instruction the defendant excepted. The court also refused to give, as presented, the defendant’s said instructions 4, 7, 10, and 13, but gave the last mentioned four instructions, with modifications, in the form in which they hereinafter appear; and the defendant excepted to the refusal of the court to give the said instructions Nos. 4, 7, 10, and 13, without modifications, as presented and excepted to the making of the said modifications.
Instead of the said instruction No. 4, the court gave an
And instead of the said defendant’s instruction No. 7, the court gave an instruction iu the words and figures following: Instruction: “If the jury believe, from the evidence, that the plaintiff, Reese, was himself negligent, and that his negligence directly contributed to the injury of which he complains, then the jury must find for the defendant although they may believe, from the evidence, that the defendant was also negligent, unless the defendant, knowing the exposed condition of plaintiff, could have, by the exercise of ordinary care, prevented the injury complained of.”
And instead of defendant’s instruction No. 10, the court gave an instruction in the following words: Instruction: “If the jury believe, from the evidence, that the defendant’s track was defective, and that the accident resulted from such defect, and if they further believe that both the defendant and the plaintiff, Reese, knew of the defect, they can not find for the plaintiff' by reason simply of that defect, unless they further believe, from the evidence, not merely that the plaintiff' had ground to believe that the railroad company would immediately repair such defect, but also that the railroad company had made some promise, express or fairly implied, to the plaintiff, Reese, from which he had reasonable ground to believe that it would repair the said defect.”
And instead of defendant^ instruction No. 13, the court
No other instructions were given to the jury than those hereinbefore stated to have been given. In addition to the questions which were submitted to the jury, and answered by them, as in this record is before set forth, the defendant also moved the court to submit to the jury, and require them to answer, in addition to their general verdict, the following two questions: “Question B. If the accident was caused by reason of a defect in the defendant’s railroad track, did the plaintiff have the means of knowing of such defect? Question C. If the truck on which the plaintiff was riding was too light, or otherwise unfit, for the purpose for which it was used, did the plaintiff, Reese, have the means of knowing the character of the truck?” But the court refused to submit to the jury, or require them to answer, the two last mentioned questions, or either of them, and the defendant again excepted. A motion was made by the defendant to set aside the verdict of the jury, and award it a new trial, but the court overruled its said motion, and refused to set aside said verdict, and the defendant excepted. Judgment was rendered upon the verdict, and the defendant applied for and obtained this writ of error.
The action of the court in overruling the defendant’s demurrer to the original and amended declaration, while assigned as error, is not insisted upon in the argument; and, as the amended declaration seems well enough, we must consider the demurrer as waived.
The'second error relied on by counsel for the plaintiff in
The next assignment of error relied on relates to the action of the court in overruling the defendant’s motion to exclude the plaintiff’s evidence, which was made when the plaintiff' rested his case. It appears however, that, as soon as this motion was overruled, the defendant proceeded to introduce its testimony, which was heard by the jury. When a defendant pursues this course, he is deemed to have waived his motion to strike out the plaintiff’s evidence; and this Court has held, in the case of Core v. Railroad Co., 38 W. Va. 456 (18 S. E. 596) that, “if the defendant, after the court, has overruled its motion to exclude the plaintiff’s evidence on the ground of insufficiency, proceeds with its defense, and introduces its evidence, this Court will disregard
The next assignment of error claims that the court erred in refusing to give certain instructions asked on behalf of the defendant, and in modifying certain other instructions asked on behalf of the defendant, and also erred in giving certain instructions asked on behalf of the plaintiff.
It is contended that the court erred in giving the plaintiff’s instruction No. 8 to the jury, and in this it appears to me that counsel for the plaintiff' in error is correct. A brief reference to the testimony in the cause will show that, at the time the accident occurred which resulted in the injury complained of, the plaintiff was not engaged in the performance of any duty under the supervision of the foreman, Palmer. On the contrary, the day’s work was done, and, as appears from the testimony of Reese himself, the hands were returning home, riding on the engine and trucks— some getting off at one place, andsome at another, on their way to their respective homes; and the plaintiff, Reese, not being in the act of performing any duty for the defendant, either with or without the supervision of said Palmer, at the time he received his injury, it was error to instruct the jury, in the language of said eighth instruction, that, “if, through his (Palmer’s) neglect of duty, one of these laborers, in the performance of his duty, without neglect on his part, is injured, such laborer may recover,” etc., there being no evidence tending to show that the plaintiff was performing any duty under the supervision of said Palmer at the time of the accident.
It is urged by counsel for the defendant in error that the plaintiff was a common laborer, under the immediate supervision of the foreman, and that he was standing on the truck, riding home, without protest on the part of the foreman, and this, it is contended, constituted negligence on the part of the defendant- The testimony, however,
It is further urged by counsel for plaintiff in error that instruction No. 6, given at the instance of the plaintiff, was erroneous, because it told the jury, as a matter of fact, that men whose business is the lowest form of human labor are not given to thought, reflection, and foresight, and that, in determining what would be negligence on the part of the plaintiff, they would consider how far the plaintiff had a right to rely upon the care and superior knowledge of the employer, and reference must be hadto his means of knowledge of the structure or machinery and processes and work upon which he is employed. Now, it does not appear that the employer, in this instance, had or could have had any superior knowledge to that of the plaintiff in regard to the structure of this truck. It appears to have been a platform with four wheels under it, and nothing intricate about it— nothing which would require superior knowledge, thought, reflection, or foresight to understand the manner in which it was drawn back and forth by the engine. The plaintiff had been assisting in the use of it day after day, and, without the warning which was repeatedly given him, should
As to instructions 4, 7, 10, and 13, asked for by the defendant and refused by the court, so far as they relate to the low joint or defect in the defendant’s track, I do not regard these instructions as material, for the reason that it does not appear affirmatively, from the evidence, that the accident was occasioned by the defect or low joint on the left hand or lower side of the track coming from Leatherwood Bridge towards Wheeling; but, on the contrary, it appears from the testimony of G-eorge M. Jacobs (page 65 of the printed record) that the first truck, on which the plaintiff was standing at the time of the accident, had passed the first and second joints after leaving the bridge, and was in the middle of the rail on the lower or left hand side, at the time the accident occurred.
As to the action of the court in refusing to give instruction A, asked for by the defendant and refused by the court, which prayed that the jury in this case should be instructed to return a verdict in favor of the defendant, the refusal of this instruction and the action of the court in overruling the motion of the defendant to set aside the verdict and grant it a new trial may be considered together, as they involve the same questions of law and fact; and in my opinion the court was acting under a misapprehension of the law applicable to the facts in this case when it refused said instruction and overruled said motion. In the case of Skidmore v. Railroad Co. 41 W. Va. 293 (23 S. E. 714) it was held that, where a foreman and his assist
The findings of the jury in response to the interrogatories propounded were inconsistent and contradictory. Eor instanse, in response to No. 3, which asked, “If the accident was caused by reason of a defect in defendant’s railroad track, did plaintiff know of such defect?” they answered, “No.” In response to interrogatory 12, which asked,
My conclusion is that the court erred in overruling the motion of the defendant to set aside the verdict and grant it a new trial. The verdict must be set aside, the judgment reversed, and a new trial awarded, with costs to the plaintiff in error.