*1 рleaded bearing legal here has been satisfied is without being now considered as to whether the damage may separate same items twice considered actions on two bonds with different sureties executed to payment damages full secure the of all the suffered. Granting might joined the two bonds have been original action, may it does not follow that there not separate be a action the second bond.
Judge Maxwell concurs this note of dissent. Chesapeake Arthur Louellen Vest Ohio Rail- & way Company (No. 8340) 6,May May 19, Submitted 1936. Decided (As rehearing, modified on denial July 1936.) dissenting. Judge,
Kenna, Fitzpatrick,' Strickling, & Davis Brown W. and C. for plaintiff in error. Lilly,
Lilly Thrift, Jr., Russell & A. L. R. J. *2 in error. defendant
Hatcher, President: involves the of a railroad
This action children, place, who, habitually a certain boarded small at slowly freight train. pathA children crossed a track used school feet below a water about one thousand column. aged years, plaintiff, six and other children were small along path returning October home from school on They arrived at the track coincident with the question. stopping it of the train Since was arrival speed column, path its rate of at at the water just per hour. miles and several a few companions on climbed train. fell off and He his complete practically suffered loss an arm and a judgment leg. injuries, he herein a For those recovered $50,000.00. stopped at water column The train daily During four M. three and o’clock P. between usually months, arrived when chil- school the train returning path home from A on the school. dren were testified without contradiction that number of witnesses years plain- during for several school before months injured, practice it was the constant of the school tiff was stopped until board and ride at that train children sight A had column. witness'who lived in the water years “Ever I four since lived for about said: the trаck always got train; the train over there the children get on the train and ride would slow, up pulled and train; along riding playing them hear I could it. every times; evening many about be- how know don’t I watching children.” those got I cause track testified close lived who witness Another day, every she saw some of-the school practically school big girls “just children, ranging in sizе from little train; hop and that would do so at times tots” crew, presence never heard of the train whom she in the aged years, objection. boy, any One thirteen school make participated that the school testified who * * * grab up primer on would children “from toy it, brakemen play and the just make train boy, aged say Another also just ‘Hello’.” seе them and participated in the for about thirteen, had who injury, testified that years prior to four habitually train without ob- boarded the school on one occasion crew and jection from the train train, jumping off boys on and were three when going you are to ride the “If to them: said brakeman hopping quit off.” get ride and on and fireman, engineer, crеw consisted of the The train brakemen, were used and two all whom conductor *3 engineer by he did not defendant. said witnesses injured; day plaintiff was but was the children on see questioned to the children to board not fireman testified that he did not see the the train. The day practice. know of and did not children on that questioned nor were the conductor thе brakemen Neither prior accident seeing children to the or as to the as to alone, ignorance, practice. cannot over- The fireman’s positive and detailed evidence come the regarding practice. be must taken as witnesses the. actually knowingly permitted, fully proven, if not and as conductor and the brakemеn. invited theory tried the case on the that none The defendant plaintiff; that he was a tres of the train crew saw the knowledge passer; in the absence of actual and that theory danger, duty. was owed him no That his 275, 85, Angeline Ry. Co., 128 E. v. 99 W. Va. S. based that a railroad 34, hold R. which does 43 A. L. except trespassing refrain child
owed him, it is not the injuring and that knowingly from pre when in motion police cars crew to of a train 460 holding, jumping from on the train.
vent children That however, factually must limited to cases similar child, being There case. warned a brake train, attempted man to ride a not board the train injured. surreptitiously trespass and was There a lone Here, boarding was involved. the train habitual was eyes permis and donе under the with was the tacit Hence, controlling facts in train crew. sion are dissimilar. the two cases 34, Angeline reported 43 L. and is in A. R. case is commencing on supported an extensive annotation p. fails An of the cases annotated examination analogous single closely with one facts discover only two Defendant has cited those of instant case. annotation, v. Guardian cases from the Swartwood’s 305, Co., Ky. 247, 111 19 N. & R. S. W. Louisville (N. S.) 1112, N. Ben Louisville & R. L. Co. R. A. Ky. 498, Adm’r., from nett’s W. both S. case, Kentucky. In the Swartwood court said attempts board the train: “It is true trespasses probable; but known that such Bennett sporadic.” decedent aré old, approximately years fourteen and the boys crew to the court was based age to childrеn of that contradistinction years. Here, attempts of the facts that of tender (during school children to board the train were habitual old, months) only years and that six clearly Swartwood this case from the differentiate Bennett cases. annotator, supra, “Railroad
The summation of the *4 companies ordinarily keeping under of are no tres recog passing сhildren their cars.” We from rule; general rule, formulated, a nize that but it is imply, ordinary trespassing. the case of its words meet designed situation, extraordinary to meet an never here, license to of presented of such as general recognizing rule, years. After tender Kentucky in Louisville & N. R. said of Supreme Court
461 Steele, Ky. 605, 43, 49, 179 201 A. Co. v. L. R. S. W. 1918D, 317: “But when as in this is evidence there boys age of are show that immature and discretion habitually by permitted jump and conductor to company (railroad) ride trains then the volun tarily anticipating they of will assumes permitted might do what he has and consented that do, exercising ordinary and the further of care to recog injury.” protect After for them from look out and Georgia rule, Supreme nizing general Court Ry. Co., 116 43 S. Ga. likewise said Ashworth v. way 36, 38, 59 A. 592: “But when the E. L. R. through company place used extends of a railroad years, children, ages varying 15 number from playground, children are accustomed as a and when these every playground continuously, the train enters the time upon it, when to swarm playground, when the em ride to the limits of the company ployes make know of this custom and carry objection it, no is bound knowledge permission im-' burden such a and tacit which require pose, burden would pre comply ordinary care for the with the demands of injury the children.” Under like circum vention stances, Supreme Utah and held that Courts of Texas itself could not shield behind Co., 244, 130 general Rr. Lawhorn v. U. rule. See 470; Ry. Abernathy, Louis S. Co. S. W. P. St. W. ap A careful search has discovered decision plying general rule circumstances. under similar Confirmatory Damages search, for of our Watson on Inj., p. 293, says: presence, child Pers. “Where the of a * * * trespasser known, reasonable would have been had exercised, liability negligence may care been there injuries acquiesced sustained —a dоctrine even strongest trespassers’ advocates the ‘no here; apply Consequently, that rule rule.” we will not long of board hold duration of the but that the ing approval this train with the tacit *5 brakemen, imposed on conductor defendant anticipate a continuation of the discourage make reasonable efforts to it. For failure sо, respond damages to do defendant must now to the plaintiff. rulings
Numerous errors are accredited defendant to evidence, argument of the trial court on instructions and knowledge which relate actual of some of the train plaintiff crew that the train. Since we are opinion proof knowledge presence that of actual of his requisite, prejudicial was not we see no error rulings, or occasion to comment thereon.
Upon verdict, motion to set aside the court order states the trial court “indicated that he ought that the verdict was excessive same $25,000.00, be reduced to but the refused to any remit amount of said verdict and the defendant agree any refused such remittitur and insisted verdict”, motion to set thereupon aside the and that charges the court overiuled the motion. Defendant since excessive, the trial court considered the verdict he setting erred in not it aside. To have warranted such action, under our the court should have been improper swayed jury convinced that motives fixing the amount thе verdict. The court order ex presses personal no such conviction. The idea of the quantum damages, alone, court should not jury. overbalance that of the The court “will not set simply aside verdict because it would not have been willing, sitting juror, large if as a to assess so an Ry. Co., 595, amount.” 592, Corrick v. 79 W. Va. S. E. charges
Defendant also error to sеveral remarks made argument jury. counsel in his to the jury disregard court directed the all the we remarks objectionable, except conceive to have been a statement counsel, experience, in his “railroad witnesses way.” jury all see the same of coun- Statements personal experience essentially impropеr. sel’s instance, however, on evidence the verdict was based witnesses; practically so uncontroverted defendant’s impro- prejudice counsel’s we see defendant from priety. *6 judgment
The is affirmed.
Affirmed. Upon petition to rehear: trial, defendant asserts that at the
The recovery upon failure to use due not base his did train, keep care to off but failure to use him on due care after he was or should have been discovered by record. the train. assertion is not sustained This given declaration, The an instruction evidence and plaintiff accordantly he based his demand show that assump- upon a two failures. His concurrence greater requisite, tion of a burden than was does not against him. itself militate says
Defendant because of its idea that operation relying only negligent he train train, one of it did not examine but its boarded the (the fireman) knowledge of the chil- train crew on his given train, if to board the another dren’s prac- trial, the crew knew of the can show that none of During practice, period tice. operated by сrews. a number different operating
(Eight the train under different crews were arrangement very “pool” time of at may injury.) Consequently, crew not the fact that one not alone discredit known of the would have practice. plaintiff’s evidence of the petition refused. Judge, dissenting: Kenna, disagree my case brethren in this with the views of
I ghastly by although deeply and, I moved too am child, am the injury this little sustained overwhelming with variance views are at that those very and, fact, cases with the of decided cases number majority opinion therein to sustain the views used expressed. .general majority opinion rule that admits the keeping duty companies tres- are under no
railroad moving boarding cars. passing their сhildren from if who would otherwise reasons that then long trespassers, continued known reason of a railroad, boarding at a certain cars its invitees, point, then have become cars, keep them from is- under if chil- and if this is breached injured, com- get the railroad dren onto the cars and are damages. analysis respond will pany Close must nothing way of more than another disclose that this is “dangerous instrumentality” stating doc- so-called the railroad is held to. trine. It means that person whom the owed owe before *7 duty keep gets upon premises. cars That is to its or cars, person premises, or oif and conse- the off its its status, of quently, of whether arises before the arise, invitee, trespаsser, can these licensee or since only various attach person upon statuses the the is premises company. cars or the of the railroad the Since duty spring is one that does not from the status of the person duty owed, but, pointed to whom the is as been has out, duty is a that arises that status has been before person determined, upon the has the before entered premises railroad, or cars of the it is bound to be the keeping duty people away premises, affirmative of from its coming upon and from its cars. Such a could arise only extraordinary danger might persons out of to who upon upon premises be’ come its or its cars. allowed to rule, necessity Otherwise, there would be no for such a is, effect, plainly extended seen that it an it (cid:127) the application or nuisance” of either the “attractive says the instrumentality” “dangerous doctrine. (and persons the company permits if it railroad that seems, logic apply, well to adults as rule would of the cars, years) then its of tender to come as tо infants cars, keep off them its the mere fact that it fails to company event in the the railroad liable renders imposed upon obligation injured. an the This is company insurer, higher duty the owes than railroad a passengers. to its majority opinion reasoning fallacy
The act, that it treats the same seems to me to lie the fact company keep per- namely, failure the railroad determining of those cars, the status off both as sons its giving cars, persons and as when board the one recovery. evidence but In there is majority theory duty, of the even under the breach ques- keep opinion. children in That circumstance tion from its cars. This one opinion changing majority the status of the used trespasser plaintiff from of a to that of an invitee recovery. furnishing opinion basis of and also as trespasser plaintiff was not but,, reasons that since keep owing him off its failure of the railroad to company invitee, cars, railroad owed had become an proceeds duty. reason then him of the railroad com- arose from the failure since a cars, also pany keep off keep railroad breached the failure words, according other plaintiff off its cars. majority opinion, of the railroad the failure operated both to fix the keep plaintiff off its cars proximate cause of and as the status only injury. in the event that plaintiff’s be so This could an became insurer *8 cars, equiva- safety and this is he had boarded its dangerous treating instrumen- railroad cars as lent to duty of against the railroad which it is the talities any case that has guard aware of public. I am not principle. gone far as to such so state that, my rule is plain that the true mind It seems way right upon of whereas, person who comеs moving trains, with company or boards its of a railroad invitation, trespasser only out is a to whom is owed duty injury, nevertheless, refrain from wanton where knows, charged knowledge, the railroad or is with right way, habitual use its or of the habitual board ing moving places of its trains at certain and under cer conditions, and, knowledge, tain put with that fails to stop persons affected, to the are raised trespassers from the status of to the status of licensees or, perhaps, invitees, higher duty to whom a than that merely refraining injury from wanton is owed. The permitting persons matter of such to come premises moving company of the railroad or to board its only persons. trains affects the status of such When fixed, their is thеn status that status determines the the railroad owes Some them. further act con stituting negligence actionable must be shown in order Permitting to render the railroad liable. per moving gives recovery sons board its trains no against company unless, a railroad in addition to the proof higher from which the status corresponding duty springs, of the railroad proof company, there is of the railroad status, which breached. If arises from the has been person trespasser, simply is a to refrain from injury invitee, person him: wanton if the is an then the affirmative to exercise reasonable care for his showing safety proof arises. there is no that either of these duties was breached the railroad cоmpany. proof simply prac an established shows permitting slowly moving tice children to board trains its point question, injury at the and the moving after he had boarded a train of the defendant. higher practice gave plaintiff a than that This status majority trespasser. agreed far I am of a This with the higher status, opinion. However, even with that there any duty proоf defendant breached higher majority in that owed to status. recovery the railroad failed because sustains discourage” efforts to “make reasonable awarding trains. This is
467 damages simply permitted practice because the consti tuted the an invitee. attempt cumbered an
This memorandum cannot be through decided principles disсusses to trace the difficulty, thought, however, that, without cases. following to discover can be used references Angiline & authority v. rest: which Norfolk 275, 43 85, 128 E. Railway Co., 99 S. W. Va. Western Pittsburgh Railways Co., 34, note; Walsh A. L. R. v. S.) (N. 559, and 463, 826, L. R. A. 70 32 Pa. Atl. & 563; Louisville page Guardian v. Swartwood’s note at 305, Ky. Co., 247, 111 Railroad S. W. Nashville 465; Rep. Cahill v. (N. S.) 1112, 130 Am. St. L. R. A. 84, 19 571, L. R. A. Company, 96 Pac. & 153 Cal. Stone L., 1139; (N. page 20 R. title S.) 1094, C. note at L., title 92; 22 R. 81, page C. Negligence, paragraph 925, paragraph Railroads, page County Raleigh County Court
Lucinda Clark 8286) (No. May 19, 1936. May 13, Decided
Submitted Preston, in error. D. A.