62 W. Va. 535 | W. Va. | 1907
This was an action of trespass on the case for the killing of a horse by the defendant on its railroad track. The defendant demurred to the declaration which demurrer was overruled, the plea of not guilty entered, a jury impannelled and after the evidence was all in the defendant demurred to the evidence in which the plaintiff joined. The jury returned a conditional verdict in favor of the plaintiff for $300.00. The defendant moved the court to set aside the verdict, which motion was overruled and the court took time to consider of its judgment of the demurrer to the evidence, and on the 24th day of October, 1906, the court overruled the demurrer to the evidence and entered jugment upon the verdict.
Plaintiff in error seems to rely strongly upon its demurrer to the declaration. The declaration contains but one count and the same has frequently been held by this Court to be sufficient. It is contended that no facts are averred in the declaration tending to show negligence in any degree and that no act of negligence was alleged. The declaration alleges that “ the said defendant then and there, by its said servants and agents, so improper and negligently used, managed, run and operated its said locomotives and cars that by and through the negligence, carelessness and improper conduct of the said defendant, by its servants and agents in that behalf, the locomotive and cars of the said de
Counsel for plaintiff in error seem to rely most strongly upon the case of Snyder v. Electrical Co., 43 W. Va. 661, which it is claimed modifies the rule heretofore established where it is said at page 663: “I take it that it would not bo enough simply to say that the company negligently killed a horse.”' The declaration under consideration goes further and says how the horse was negligently killed by the defendant and its servants, to-wit: by carelessly and negligently running its locomotive and cars upon the horse; and this allegation of negligence clearly implies the duty of the defendant as well as the breach of that duty.
In Hogg’s PI. & Forms, section 140, it is said:
“It is well settled and may be laid down as a general rule, that in a declaration charging negligence it is not necessary to state the particular acts which constitute the negligence. A declaration will be treated as alleging by implication every fact which can be implied from its aver-ments by the most liberal intendment. The object of the declaration is to set forth the facts which constitute the cause of action, so that they may be understood by the party who is to answer them, by the jury, who are to ascertain the truth of the allegations, and the court who is to pronounce judgment.”
In Railway Co. v. Lawton, 55 Ark. 428, at page 433 the court, speaking through Judge Hemingway, says: “The word ‘negligence’ implies a duty as well as its breach, and the fact can never be found in the absence of a duty.”
In Blaine v. Railroad Co., 9 W. Va. 254, this declaration is held to be good on demurrer, and the declaration at bar is in strict conformity with the form laid down in Hogg’s
Row as to the demurrer to the evidence. It. is the duty of the servants of a railroad company in charge of its trains to keep a lookout for stock upon the track,, and if stock happens to be on the track and is killed by the train the company is liable for the value of the stock so killed, if the killing could have been avoided by the exercise of ordinary care; that is, if it could have been seen in time to have avoided the killing by the use of ordinary care, though it may not actually have been seen in time to avoid the accident. Blaine v. Railroad Co., 9 W. Va. 254; Baylor v. Railroad Co., Id. 270; Washington v. Railroad Co., 17 Id. 190; Bullington v. R. R. Co., 32 Id. 436 and Heard v. Ry. Co., 26 Id. 459.
The evidence shows that there were two engineers on the engine on duty at the time of the killing of the horse — Mr. Bartell, Road Foreman of Engineers, and J. W. Bull who was running the engine. Bull was at the place of the engineer on the right hand side of the engine and Bartell on the left side when the train emerged from a cut so that the track was in view for the distance of 1670 feet, all of which distance was clearly in the view of Mr. Bartell. The horse
, It is claimed by the plaintiff in error that the damages found by the jury are grossly excessive and “ evidences prejudice, hostility and temper on the part of the jury. The only evidence is found on pages 21 and 22 on cross-examination.” Counsel overlooks the fact, in making this statement, that not only the plaintiff stated that rhe horse was “ worth three hundred dollars but that J. Gf. Iiixey, another witness, testified that the horse was “worth three hundred dollars in hand money right down;” also another witness, I. K. James, testilied: “ Q. What was that horse worth, Mr. James? A. About three hundred dollars any how. Q. How much? A. Two hundred and seventy-five or three hundred dollars, .or throe hundred and a quarter.”
The proof is ample as to the value of the horse to sustain the verdict of the jury. For the reasons stated the judgment •of the court is affirmed.
Affirmed.