94 W. Va. 38 | W. Va. | 1923
This is an action on the case brought by plaintiff, an infant, suing by his next friend, for personal injuries. After introducing his evidence, the defendant introducing none, the court on motion of plaintiff directed the jury to find a verdict for him. They retired to determine the amount of damages sustained, and returned a verdict for plaintiff of $3,300.00. On motion of defendant to set aside this verdict, and in arrest of judgment, the court put the plaintiff on terms of accepting in lieu of the sum found the sum of $1,500.00, or the verdict
The alleged negligence consisted in the ownership by it, unattended by any one, of a wild, uncontrollable, vicious, unbroken and dangerous horse at its coal operations in McDowell County, in close proximity to the houses built by it for use of miners, one of which was occupied by plaintiff’s parents; and in an amended count filed it is alleged that defendant’s stable boss, in the regular course of his employment, wrongfully, negligently and unlawfully turned over to another employee of said defendant a certain horse, which was wrongfully, negligently and improperly harnessed and equipped for the work said servant was directed to do, in that there were no reins or lines on said harness or horse, by reason of which said horse became unmanageable and ran away doing the injury to plaintiff complained of; and it is further averred that, on the 13th day of October, 1921, when the plaintiff sustained his injuries, he was in the street opposite and in close proximity to the house and yard occupied by his parents and was struck and dragged quite a distance by said horse running away and hitched to steel rails, whereby he was cut, lacerated, injured and wounded upon his head, and whereby he became sick and sore and suffered great pain, and was put to great expense in endeavoring to be cured, and for all which he demands'damages in the sum of $25,000.00. The evidence supported the facts as alleged, except that there was no evidence that the horse was vicious.
As the defendant introduced no evidence, the facts proven were uncontroverted. The first, proposition by counsel for plaintiff is that the court.erred in setting aside the verdict and awarding defendant a new trial. On the other hand defendant would support the judgment below, in the first instance, on the ground that the court improperly instructed the jury at the instance of plaintiff to find a verdict for him; and in the second place, that its action was fully justified by the excessiveness of the verdict.
Of course, if these propositions be well focmded in law and fact, the court below, as defendant’s counsel contend, instead of instructing the jury to find for the plaintiff, should as requested by them have .directed them to find for defendant, and that the judgment should stand although the reason assigned by the court for its action may not be regarded a sufficient one.
The controlling question presented then is, does the pleadings and evidence as matter of law make out a case of actionable negligence, against the defendant? The evidence of Sargeant, the employee in charge of defendant’s horse, and of Carter, the stable boss from whom the horse was obtained to snake up the rails, introduced by plaintiff, on cross-examination by defendant’s counsel, tends to show that it was the custom of defendant, and perhaps elsewhere in the coal fields, to use horses for that purpose without rein or line to control them, and such being the custom, counsel say defendant could not rightfully be charged with negligence as a matter of law, and that being one of mixed law and fact, the question should have been submitted to the jury. The authorities
Can we say, should we say, as a matter of law that such use under the particular facts and circumstances' eonsituted negligence per se? We are disposed to hold that it was, and that the peremptory instruction complained of was rightfully given.
As was said in Reilly v. Nicoll, 72 W. Va. 189: “It is unusual to hold a master guilty of negligence, upon facts adduced in evidence, as matter of law, but to do so is not inconsistent with law. On the contrary, it accords perfectly with
On the principle proposition, however, this court has heretofore held that, “in cases where the common experience of mankind, and the common consensus of prudent persons, have recognized that to do or omit to do certain acts as prolific of danger, we may call the doing or omission of them ‘ negligence per se,' or 'legal negligence'." Carrico v. Railroad Company, 35 W. Va. 389. “That horses, although-otherwise tractable and gentle, are liable to and do run away when thus freed from restraint, is a common and ordinary experience, against which any reasonable and prudent man takes precaution.” City of Joliet v. Shulelt, (Ill.), 32 N. E. 969, 18 L. R. A. 750. In Moulton v. Lewiston, Bruswick & Bath Street Railway, (Me.), 10 L. R. A. (N. S.) 845, it was decided that one who leaves a horse unhitched in a street on which ears using snow scrapers calculated to frighten horses are running, can not hold the street car company liable for injury to the horse and vehicle due to the horse becoming frightened at a car and dashing in front of it.
To this ease an elaborate note will be found collating the cases of this character; and under the heading ‘ ‘ Evidence of Negligence”, will be found many eases supporting the proposition, that it is contributory negligence as a matter of law for the owner or driver of horses to leave them unhitched or unattended, barring recovery for the injury when injured under circumstances similar to those involved in the principal case. It is unnecessary to review these cases here. The proposition which they all support is that the contributory negligence which in such cases would bar the owner of the horse so operated from damages to the horse, would render him liable as a matter of law to one injured thereby and to whom he owed some specific duty. We find no fault with the argument and authorities cited in support.of the proposition that ordinarily the question of negligence is a mixed question of law and fact for the jury, but not so in
It is true, as argued by counsel, that one is not liable for negligence when no injurious consequences could reasonably have been anticipated as a result of the act of omission complained of Virginia Iron, Coal & Coke Company v. Hughes, 118 Va. 731, 88 S. E. 88, 92, McClary v. Knight, 73 W. Va. 385, 392; Leonard v. Enterprise Realty Company, 10 A. L. R. 238. But whether such consequences should have been anticipated is the question we have decided against defendant in this case. We hold that as a matter of law the injurious consequences which befell the plaintiff reasonably should have been anticipated from the operation of the horse as he was being driven, in such close proximity to the houses and homes of its employees and where they and their household had the right to be.
But it is said that the plaintiff had only permissive use of the premises, and if not a trespasser was a mere licensee, to whom the defendant owed no duty except not to wantonly and wilfully injure him. For this proposition counsel refer us to Smith v. Sunday Creek Company, 74 W. Va. 606. While the language quoted by counsel is found in the opinion of that case, the decision is inapt. There the person injured was a little girl, occupying with her father, an employee of the defendant, a house on the defendant’s property and in close proximity to the railroad on which the car'stood that unattended broke away and did the injury of which she complained. The entire language which shows its applicability to this case is: “Mere permissive-use of the premises, by express or implied authority, ordinarily creates only a license. Yet if the use is in connection with the business -of the owner, or for his benefit, it is more than a mere license, and a greater degree of care is recognized on his part than in cases of mere licensees using the premises for purposes of their own." For this law numerous cases and text books are cited. And it is there said that this law extends to one who resides as a boarder at the home of an employee living in a house built by the employer. The cases of Dicken v. Liverpool Salt & Coal
The most troublesome question presented, and the one on which .the trial court erred, if it erred at all, is that of the alleged excessiveness of the verdict. The nature and extent of the injuries of the child, an infant of about three years, is that he was struck on the forehead, and a laceration effected something in the shape of a horseshoe clear through to the bone or skull, which if stretched out would be about three inches in length, from which the skin, the father says, hung down leaving the bone exposed, and that it remained so from ■October 13th to December 1st; that it was about ten months until the wound healed over; that two or three times after-wards it became sore and discharged pus; and that before that the child was in good health.
The physician in charge of the case stated that the child was in the hospital about eight days before he was discharged ; that besides the wound on his forehead there were two slight bruises on the back of his head; that he gave the child ether in order to treat the wounds; that as the child grows and increases, in age the disfiguration will diminish, but that the sear will remain to a certain extent as long as he lives; that at the place where the scar is the skin is thin and easily scratched, and more susceptible to infection; and that the- in
On the original hearing here, based on the professional opinion of the physician that the character of the injuries inflicted on the child were impermanent and slight in character, and the action of the court in setting aside the verdict, we concluded that the verdict was excessive and that the judgment below should not be disturbed. But on the present hearing, the child with the character and permanency of the injuries inflicted having been personally shown to the court and we thereby put in possession substantially of the same facts as were presented to and considered by the jury when rendering their verdict, we have become satisfied that the verdict was not excessive, and that plaintiff ought not to have been put on terms of accepting a less sum than the amount found by, the jury. As many times ruled by this court the quantum of damages in such cases is generally for the jury, and ordinarily their verdict will not be disturbed unless so large or small as to evince bias, passion, prejudice, or mistake, or lack of due consideration of the evidence. Thomas v. Lupis, 87 W. Va. 772.
Our conclusion, therefore, is to reverse the judgment, reinstate the verdict, and enter judgment thereon for the plaintiff, which we think the circuit court should have pronounced.
Reversed; verdict reinstated, judgment for plaintiff.