This was an action of trespass on the case brought December -31, 1891, in the Circuit Court of Lewis county by the administrator, Woodell, against the West Virginia Improvement Company for negligently causing the death of plaintiff’s intestate. Klinore Craves, resulting in a verdict for plaintiff for three thousand dollars, and brought here by defendant on writ of error.
The defendant filed a plea in abatement to the jurisdiction of the Circuit Court of Lewis county. On motion of plaintiff the court struck out the jilea as insufficient, which is the first error complained of. The jilea is as follows:
‘‘Idea in Abatement. January Hules, 1891. The West Virginia Improvement Company ails. William S. Wooddell, Administrator of Klinore Craves,.deceased.
“And (he West Virginia Improvement Company, the defendant, being a corporation existing as such under the laws of the State of West Virginia comes and under its corporate seal says, that, this court ought not to take or have any further cognizance of the action aforesaid of the said plaintiff', because the said defendant says that the supposed cause of action did not, nor did any part thereof, arise in llie said county of Lewis, hut the supposed cause of the said action, and every part thereof, did arise within the county of Upshur, in the state of West Virginia, and that at the time of issuing of said writ in this cause the said defendant did not reside in the said county of Lewis, nor did it have its principal office in the said county of Lewis, nor did its president or other officer reside in said county of Lewis, hut that its president and other chief officer then, ever since, and now reside in’ the county of Wood, in the slate of West Virginia, and that its principal office was then, ever since, and is now in the said county of Wood, in the state of West Virginia; and this the said defendant is ready to verify. Therefore the defendant prays judgment whether this court can or will take any further cognizance of the action aforesaid.
“[Seal.] John Brannon, P. D.”
*26 “State of West Virginia, Lewis comity, to-wit:
“This day J. A. Fickenger appeared in person before me, a notary public of said county and state aforesaid, and made oath that the facts and allegations stated in the foregoing plea are true to the best of his knowledge and belief.
“'Given under my hand this 7th day of January, 1891.
“J. B. Brannon, Notary Public.” .
If this plea to the local jurisdiction of the court had begun : “And the West Virginia Improvement Company, by Harry P. Camden, its president, comes,” etc , it would have beeir a good plea in such case according to the ruling in Quarrier v. Insurance Co.,
Plaintiff's declaration expressly avers that the cause of action arose in the county of Upshur; so does the plea—thus giving the court of Upshur jurisdiction under section 2, c. 123, Code. The return of a writ of summons issued by plaintiff', and returned duly executed on the president of the company at Parkersburg, Wood county, by the deputy sheriff of that county, shows that the president, the chief officer, resides in Wood county. The plea avers that fact, and also avers that the company’s principal office is in Wood county, thus giving the court of Wood county jurisdiction under second clause of section 1, c 123, Code. In addition the plea also avers that the. supposed cause of action did not, nor did any part thereof, arise in the said county of Lewis; that at the time of issuing the writ, ever since, and now the defendant did not reside in the county of Lewis, nor its president and other chief officer, nor did it have its principal office in Lewis, etc.
The defendant, corporation in this plea appears and speaks in its proper name, and under its corporate seal, as near a personal appearance as is possible. Having no
In civil eases generally the practice of appearing in proper person has long been out of practice, the reason for it having ceased. Long ago he must have asked leave of the court before he could appear by attorney, and when he appeared in person to ask special warrant or leave, as it then had to be, to appear by attorney, by that act he gave the court jurisdiction, and thereafter the plea in abatement would come too late; hence he had to plead in abatement to the jurisdiction in proper person. Literally this could not be done by a corporation, and I have found no other authority in the books saying that in such case.it must appear by its.president or other chief officer, but rather making it ou that account an exception, and authorizing the corporation in such case to appear by attorney.
We have already seen that there need be no formal appearance or formal defence. “ The defendant says that,” followed by the proper and sufficient averments, which show t|iat the court has no jurisdiction, and give the plaintiff a better ^writ with a proper conclusion (“This he is ready to verify,”) and prayer that the court will not take further cognizance of the action, averred with sufficient certainty, pleaded in time,’ and properly verified by affidavit,j ought at this day to be regarded as a good plea, containing, as it does, all the. matter of both form and substance that the utmost strictness and care under our statutory changes in the rules of pleading now require. There is nothing in the letter of section twenty six which excludes such a plea to the local jurisdiction of the court, any more than a plea in bar for, say, want of jurisdiction of the subject-matter; for the other sections name the corporation as a defendant, and we can see no reason why the defendant corporation should not be within the meaning of the rule, nor why it should not comprehend such pleas as well as pleas in bar.
This statute on the subject is not referred to in the ease of Quarrier v. Insurance Co., cited above. The spirit, in which the revisors of 1849 approached this subject, was that there was much of value in the accumulated wisdom of former ages. This they aimed to preserve. At the
We arc therefore of opiniou that the body of this plea is good, but it is proper to add that we are also of opinion that the form suggested in Quarrier v. Insurance Co., in which the corporation appears by its president in such a plea, is also good, as pointed out and suggested in that- case.
Rut the affidavit to the jilea under consideration is bad, and it was for that reason and that alone properly rejected. If it had said that he (affiant) was the agent or attorney, etc., of defendant, that he knows the contents of said plea, that he has no personal knowledge of the facts and allegations therein contained, but that he has been informed and believes them to be true, or making it on his own knowledge according to the facts, this would have been in accordance with the form of affidavit for verification of pleading given and permitted by 'section 42, c. 125, of the Code.
In this jilea all the facts are averred positively and directly without any qualification of knowledge, information, or belief, and is in that respect strictly correct. But the jurat, or rather certificate of the oath taken, is “that the facts and allegations stated in the foregoing plea are true to the best of his knowledge and belief.” .The affiant does not say that ho has any knowledge or belief on the subject, or any information which he believes to be true, nor is any reason given why he has or should have any knowledge or belief on the subject. It is consistent with very little or no knowledge, and expresses no belief. See Stadler v. Parmlee,
The second and third errors assigned are that the court refused to strike from the record the return of P. H. Cummings, deputy sheriff, on the writ of summons; but the court permitted the officer to amend the return so as to
The fourth error assigned is that the court erred in refusing to exclude from the jury the evidence of the plaintiff. But this was not error for two reasons: (1) Defendant had given in at least a part of his own evidence befp're he made his motion. “After the defendant has given in his own evidence, a motion to strike out all the evidence on the ground that it is insufficient to sustain the issue on. the part- of the plaintiff* should not be granted.” Carrico v. Railroad Co., 35 W. Va. 889 (
On this head in a case for negligence the remarks of Judge Cooley in Railroad Co. v. Van Steinburg,
The remaining assignments of error involve the main points in the case, and related to the facts and to certain instructions given for the plaintiff and instructions asked for by the defendant -which the court refused. The facts of the case as they appear from all the evidence on behalf of plaintiff and the uncontradicted evidence of defendant are as follows:
The defendant, a construction company, was, in December, 1890, engaged in constructing a railroad in Upshur county up the Buckhannon river, and was then engaged in laying the track. The track where the accident occurred was through woods, whore the location had been twice changed, amere skeleton track constructed to haul material between the stations Ten Mile and Alton, about two miles from the former. Elmore Graves, plaintiff’s intestate, was in the employment of the construction company as brakeman, and had been in such employment someten days or two weeks before the accidontwhich caused his death. This was caused by a limb of a. tree standing near the track, which limb projected over the track so as to reach about half way across the top of a box car, and.about three or lour feet from the top of such car. The deceased was a stout young man about twenty one years of age, in fine physical condition, and then earning about $1.50 per day. He had been over
The following are the instructions given for plaintiff’and defendant; instructions asked by defendant, but modified before being given, against defendant’s objection ; and the instructions asked by defendant, but refused :
' Instruction given for plaintiff: “The court instructs the jury if they find from tlie evidence that the decedent, Elmore Graves, while in the employment of the defendant
Instruction No. 2 given for plaintiff: “The court further instructs the jury that it was the duty of the defendant not to expose the said Elmore Graves, as a brakeman on its train of cars and while in its employ, to perils or hazards, against which he could bo guarded by proper diligence on its part, and that the said defendant was bound to exercise ordinary care not only in supplying but maintaining, for the use of its employes on its said cars, while in its service, sound and suitable machinery, roadway, structures, and instrumentalities, including a safe track.”
Instruction Vo. 3 given for plaintiff: “The court further instructs the jury that by ‘ordinary care’ is meant such watchfulness, caution and foresight as, under all the'circumstances of the particular service, a corporation controlled by prudent and careful officers ought to exercise.”
Instruction No. 6 given for plaintiff': “The court instructs the jury that, though a servant in the employ of another assumes the natural and ordinary risks of his employment, he does not assume or contract against the negligence of his employer.”
Instruction No. 8 given for plaintiff: “If the jury believe from the evidence that there was a tree standing’ upon or alongside of the defendant’s railroad in dangerous proximity to the track or cars or engines and tender passing over said track, and that from said tree a limb projected over the said track as far as the string board upon the top of the box car and to the center of the said car attached to the train, upon which Elmore (3raves was employed as brakeman, and that in consequence of said projecting limb and the proximity of said tree to said track the risk of injury to the said Elmore Graves in the discharge of his duties of brakeman was increased beyond the risks incident to such employment, and that said tree and projecting limb were allowed to remain there after the defendant company, or anj? person in authority representing" said company in this respect, knew of its situation, or might by the exercise of reasonable care and diligence have.known
Instruction No. 9 given for plaintiff: “The court instructs the jury that, although Elmore Graves, 'when he entered the service of the defendant company as brakeman, assumed all the ordinary' and natural risks incident to the employment in which he was engaged, he did not assume or take the chances of any negligence on the part of the defendant company, his employer; and if the jury believes from the evidence that the defendant was negligent in omitting any legal duty it owed to the said Graves as its employe, and the injury which resulted in the death of said Graves was due to any such negligence on the part of the defendant, without fault or negligence on the part of said Graves — then the defendant is liable, and the jury must find for the plaintiff.”
Instruction No. 1 given for defendant: “If the jury find from the evidence that the deceased Elmore Graves, engaged in the service of the defendant, a construction company, to construct a railroad from Buckhannon south, as a brakeman on its construction train, and while so employed thereon as such brakeman he knew of the projecting limb which caused his injury, that it was dangerous, and so spoke of it as dangerous, and thereafter continued in such service,-and was thrown by it from the car on which he was so acting by said limb, then the jury should find for the defendant.”
Instruction No. 2 given for defendant: “If Elmore Graves, the deceased, knew of the exposure to danger in
Instruction No. 3 given for the defendant: “Although the jury may find from the evidence that the defendant was guilty of negligence in not removing the limb which may have projected over a part of the top of the car of the train on which the deceased was employed as brakeman, yet, if they7 further find from the evidence that the deceased had full knowledge of the projecting limb, and some days before the injury spoke of it as dangerous, aud as likely7 to cause hurt unless he avoided it, and with such knowledge and apprehension continued in such service on such train, and was injured on said car by coming in contact with such limb, then the deceased was guilty of contributory7 negligence, and the jury7 must find for the defendant.”
.Instruction No. 6 given for defendant: ‘-‘If the deceased, Elmore Graves, while in the discharge of his duty as brakeman, passed under the tree in question twice a day, or frequently, during his employment, before the accident, and knew the danger of coming in contact with said tree, and his attention had been called to the dauger of injury from the lowness and proximity of the limb of said tree, and he had himself, two or three days before the injury, spoken to others of the dangerous position and nature of said tree to one standing on a box-car, and with this knowledge he stood or remained erect on the box-car, and, while so standing or walking erect there, was, in passing, struck by said limb of said tree and killed, then the jury7 are instructed that this was contributory negligence on the part of the deceased, Elmore'Graves, and that the plaintiff can not recover in this action.”
Instruction No. 8 asked for defendant: “If the jury find from the evidence that the defendant was guilty of negji-
' Instruction No. Í) asked for defendant: “If the jury find from the evidence that, the deceased voluntarily entered into the service of the defendant as .brakeman upon its construction train, then he is held and must be taken to have assumed not only all risks ordinarily incident to the business, but also all other open and visible risks, whether usually incident to the business or not; and if a visible limb caused his injury', partly over roadway of the defendant, the fact that he had forgotten its existence, or failed to remember it, and thus suffered the injury, furnishes no excuse for the deceased.”-
Instruction No. 8 as given for defendant, modified against its objection: “If the jury find from the evidence, that the defendant was guilty of negligence by allowing the tree with its projecting limb to remain in dangerous proximity to the roadway of the defendant, and that the deceased was knocked off the box-car and injured by coming in contact with said limb on his passing train, yet the plaintiff’is not entitled to recover in this action, if the jury' further find from the evidence, that the deceased for some days before the accident had been fully apprised and made aware of the dangerous position and character of said limb, and the probable danger that might result to him in passing it on his
instruction No. !) as given for the defendant, modified against its objection : “If the jury find from the evidence that the deceased voluntarily entered into the service of the defendant as brakeman upon its construction train, then he is held and must lie taken to have assumed not only all risks ordinarily incident to the business, but also all other open and visible risks, whether usually incident to the business or not; and if a visible limb caused his injufy, partly over the roadway of the defendant, the fact that he had forgotten its existence, or failed to remember it, and thus suffered the injury, furnishes uo excuse for the deceased,,and the jury'should find for defendant.”
Instructions asked for by defendant, but refused : “No. 11 If the jury find from the evidence that the deceased, Elmore Graves, engaged in the service of the defendant, a construction company, to construct a railroad from Buck-hannon south, as a brakeman on its construction train, and while so employed thereon as such brakemen he knew of the projecting limb which caused his injury, that it was dangerous, and so spoke of it as dangerous, and thereafter continued in such service, and was thrown by it from the car on which he was so acting by said limb, then the jury should find for the defendant.”
“No. 2. If Elmore Graves, the deceased, knew of the exposure to danger in serving as brakeman for the defendant upon a train, having to pass a tree with overhanging branch insufficiently high to permit him to pass under it while standing at full height on the top of a box-car, and with such knowledge consented to and did continue in the service of defendant as brakeman, and was thereafter killed by coming in contact with said branch, then the plaintiff can not recover in this action, and the jury must find for the defendant.”
“No. 5. Although the jury may find from the evidence that the defendant was guilty of negligence in not removing the limb which may have projected over a part of
“No. 11. If the jury find from the evidence that the deceased, Elmore Graves, was killed by the projecting limb in question, of which he had knowledge and notice prior to the timó' of the accident, and had been warned against as dangerous, the fact that the accident may have occurred in the early morning, or in the midst of smoke, without any intervening negligence on the part of the defendant, does not constitute any excuse for the contributory negligence of the deceased ”
The case turns mainly on the doctrine of continued service as a waiver of the risk of danger after knowledge of such risk, and of contributory negligence, as may he inferred from the evidence and the instructions given. . The cases on the subject are very numerous, and books and cases abound in discussions of the subject, giving defini-nitions of contributory negligence and applying the doctrine to a great multitude of particular facts. The cases are so various in their facts and circumstances, that the application of the rules creates often a great perplexity, although the definition or description in a general way of what constitutes contributory negligence seems simple enough.
Contributory negligence, when set up as a defence to an action for injuries alleged to have been caused by the defendant's negligence, is defined in Black’s Law Dictionary as meaning “any want of ordinary care on the part of the person injured, which combined and concurred with the defendant’s negligence and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred.” And the reason that such contributory negligence constitutes a bar to recovery is that the statute (section 5, c. 103, Code) gives the remedy in such cases only as would have entitled the party injured to maintain an action if death had not ensued,
Our own cases on the subject of contributory negligence are quite numerous. In Blaine v. Railway Co.,
In Snyder v. Railway Co.,
In Snoddy v. City of Huntington,
In Washington v. Railroad, Co.,
In Fowler v. Railroad Co., 18 W. Va. 579, it is held: “The negligence of the plaintiff’, which will defeat his recovery, must be a proximate cause of the injury. His negligence must be such as he could under the circumstances reasonably anticipate would result, in his injury.” See Tompsom v. Board, 21 W. Va. 224.
In Cooper v. Railroad Co.,
In Johnson v. Railroad Co.,
In Dimmey v. Railroad Co.,
In Riley v. Railroad. Co.,
In Dowley v. Railway Co.,
In Gerily’s Adm’x v. Haley,
In Cawley v. Railway Co., 31 W. Va. 116 (
In Hoffman v. Dickinson, 31 W. Va. 142 (
Searle v. Railway Co.,
In Humphreys v. Valley Co.,
In Davis’ Adm'r v. Coke Co.,
In Williamson v. Valley Co.,
In Comer v. Mining Co.,
In McKelvey Railway Co.,
In Johnson v. Railway Co.,
In Knight v. Cooper,
Beuhring’s Adm’r v. Railway Co., 37 W. Va. 502 (
Butcher v. Railroad Co.,
In Snoddy v. City of Huntington,
Boggess v. Railway Co., Id. 525, holds that the facts there mentioned showed sufficient compulsion on the part of the conductor to excuse the plaintiff from the charge of contributory negligence iu jumping from the running train so as to cause the injury complained of.
In Hanley v. City of Huntington,
In Overby v. Railway Co.,
In Gregory’s Adm’r v. Railway Co., 37 W. Va. 819, there is a general discussion of the subject, especially as to what motion for a new trial ought to show; that a rule of the company, to be binding, must be known ; and in reference to counsel reading from law-books and reported cases in argument before the jury. See Hanley v. City of Huntington, Id. 807.
I have thus gone over the most, if not all, of our cases on the subject of contributory negligence and assumed risk of injury on the part of the employe after full knowledge of the danger, and from them may be gathered the following points of law settled in many cases:
The mere fact of injury received by the servant raises no presumption of negligence on the part of the master. The servant assumes the ordinary risks of danger incident to the employment, whether the employment be dangerous or otherwise. Having knowledge of the dangers about him, he must use diligence and care in protecting himself from harm; for, -when he willfully encounters dangers, which are known to him, the master is not responsible for the injury caused thereby ; and if he continues in the employment after knowledge of the risk of danger and appreciation thereof, without proper protest or complaint on his own part orpromi.se on the part of the employer that the danger will be shortly removed, lie will be held to have assumed the risks of such danger of injury, and to have waived any claim upon his employer for damage in ease of injury. In this state contributory negligence on the part of the plaintiff', where it does hot appear by his own showing, is treated as a distinct wrong, which plaintiff heed not defend against either by his pleading or his proof, but is
I shall consider first the six instructions, viz. Nos. 1, 2, 3, 6, 8 and 9, given for plaintiff, and excepted to by defendant. Three grounds of defence were apparently set up: (1) That the projecting limb, as against a construction-company building the road and laying down a “skeletontrack to haul material,” was one of the ordinary dangers of the employment. (2) Whether the leaving it there was or was not negligence on the part of the defendant, for which it would be liable, it was not liable in this case, because the decedent’s own negligence directly and proximately contributed to his injury. In other words, he was guilty of contributory negligence. (3) That, after the risk of danger from the projecting limb became known to him, he continued in the employment without complaint to the one whose duty it was to remove it, and that he thus assumed the risk of such danger.
It is not contributory negligence to engage in a dangerous occupation. The running of a completed railroad by the common carrier after it is well furnished and equipped is dangerous, especially to the employes. It is said that during the course of one year, in the United States, more persons are killed and wounded by railroads than were killed on both sides at the battle of Sedan. That would indicate that the business is dangerous as well as large.
There must be dangers in building a temporary or skeleton track, and hauling material over it, for the purpose of construction, whieh are not incident to the services of a brakemau on a completed road. On this point there was some evidence tending to show that some such dangers are usual in the construction of railroads. This phase of the case is contra indicated by these instructions, perhaps correctly, for such limb was certainly dangerous to a brakeman on the top of a box-car.
I have given above a synopsis of the facts in the case of Williamson v. Railway Co., 34 W. Va 657 (
(2) These instructions, singly, and taken as a whole, seem to be based on the single question of fact — was or was not the deceased guilty of negligence directly and immediately contributing to his injury?
(3) The third, and apparently main ground of defence, is either ignored entirely, or touched upon in such general and comprehensive terms as to render it, at the least, doubtful whether it is taken at all into the hypothesis-of facts on which instructions No. 8 and No. 9 are based. Now, the laAv is well settled that instructions which tell the jury that, if they believe a certain supposed and enumerated state of facts, then the defendant is liable, and they must find for the plaintiff, are fatally defective, if there is wholly omitted from such enumeration a fact the evidence tends-to prove, which, if true, would require a different verdict-in this case, a' verdict for the defendant Such I conceive to he the fault of these six instructions, taken as a whole, and of No. 8 and No. 9 in particular.
From the testimony of plaintiff’s witnesses, as certified to ns, there is scarcely room for doubt that Elmore Graves, the brakeman, not only saw and knew of the projecting limb, hut had the risk of danger therefrom pointed out to him while on top of a box-ear, and on that occasion avoided it. This is shown by all the testimony, and by what he said himself after the accident. Now, the general rule is well settled that if the servant continues in the employment., without complaint,, after the risk of such danger comes to his knowledge, he is deemed to assume such risk, and to waive any claim upon his employer for damages in case of injury. Such is the settled law in this state, as laid down in the many cases, all or the most of them
It may be said that there was evidence tending to show-that he made complaint; that it might be inferred from what Grimsley, superintendent of the construction train, said : “ T directed my men to remove it, but they neglected it.” This may be conceded, and, if so, it only shows that two material facts which the evidence tended to prove, instead of one, were omitted from the hypothesis of facts upon which, if believed, the jury were directed to find a verdict for the plaintiff. The jury might well believe the one, and not the other, so that a finding for defendant, and not for the plaintiff, would have been the proper verdict. This fault was not cured, this defect ivas not supplied— could not be supplied — by any independent instruction given for plaintiff, for such instruction, if given, would be repugnant and contradictory to these, thus tending to confuse the jury, and leading them to suppose that they could take their choice between them — at least, that they were authorized to find for plaintiff, according to the instruction of the court, if they believed from the evidence the supposed facts upon which it was based. Taking plaintiff’s six instructions seriatim, No. 8 and No. Í) are faulty for the reason just pointed out.
As authority for instruction No. 1, we are referred to 14 Amer. & Eng. Enc. Law, 871, citing Flynn v. Railroad Co.,
In the New York case cited—Cahill v. Hilton (1887)
I see no objections to plaintiff’s instructions No. 2 and No. 3. As to instruction No. 6, it is correct, applied to its proper subject matter; but, as we have already seen, in our own cases already cited, he may, after full knowledge, by continuing in the employment without protest or complaint, be held to have assumed the risk of danger from defendant’s neglect to provide a safe place or way. Grims-ley had charge of the track laying and ballasting, and of
For this reason, in part, no doubt, the learned gentleman who presided as special judge refused to give defendant’s instructions, Nos. 1, 2, 5, and modified defendant’s instructions Nos. 8 and 9, before giving them; and in this we see no error, especially as plaintiff’s instructions Nos. 8, 6, 7, and 10, and Nos. 8 and 9 as modified, seem to fully cover the same ground. They were as favorable as defendant had a right to ask. I take it for granted that plaintiff’s instruction No. 4 was refused, but whether refused or given is left in doubt by the record.
By reason of the error of the court in giving for plaintiff his instructions Nos. 8 and 9, to which defendant excepted, the judgment and verdict complained of are set aside, and a new trial is awarded.