Poling v. Ohio River R. Co.
| Decision Date | 06 December 1893 |
| Citation | 18 S.E. 782,38 W.Va. 645 |
| Parties | POLING v. OHIO RIVER R. CO. |
| Court | West Virginia Supreme Court |
Submitted June 20, 1893.
Syllabus by the Court.
1. A declaration for negligence is good if it contains the substantial elements of a cause of action, the duty violated the breach thereof, properly averred, with such matters as are necessary to render the cause of action intelligible, so that judgment according to law and the very right of the case can be given.
2. An ex parte map or diagram made by a witness, and shown by him to be correct, may be given in evidence for the consideration of the jury, not as independent evidence, but to be considered by them in connection with other evidence, so as to enable them to understand and apply it.
3. To make an objection made during the trial to the admission of evidence available in the appellate court, the point must be made and properly saved by bill of exception. It is not enough to note the objection in the certificate of evidence.
4. As a general rule, a railroad company is not responsible for the negligent acts of United States postal clerks or agents upon its trains.
5. A railroad company has a platform and mail crane near a postoffice at which the mail train does not stop, but the postal clerk from the mail car, with a "catcher," takes in from the crane the mail pouch suspended thereon without the train slacking speed. A person who stations himself on the company's land, near the mail crane, for the purpose of witnessing the catch, or for some other purpose of like kind, as a mere voluntary licensee, is subject to the concomitant risks and danger of injury thus assumed, and the company does not owe him the duty of keeping the mail crane in suitable and safe condition. The railroad company is only liable for such wanton injury as may be done to such licensee by the gross negligence of the company, its agents and servants.
6. A defendant who, after the plaintiff has given in his evidence in chief, and rests, then moves the court to instruct the jury to render a verdict for defendant, but, the motion being overruled, goes on with his case, will be held to have waived his exception taken to such ruling of the court.
7. The road surveyor may change any county road in his precinct with the consent of the owner of the land, (Code, § 21, c. 43;) and, when any road is altered, the former road shall be discontinued to the extent of such alteration, and no further, and the new one established, (section 32, c. 43.)
8. When the verdict of a jury, viewed according to the ordinary rules of considering the evidence on motion for a new trial, is plainly against the law of the case upon the facts proved the court, on motion of the party aggrieved, will set the same aside and award a new trial; but not more than two new trials can be granted to the same party in the same cause.
9. A case in which the foregoing rules are applied, and various instructions and rulings are considered and discussed.
Error to circuit court, Jackson county.
Action by J. M. Poling, administrator of the estate of C. Swain, deceased, against the Ohio River Railroad Company, to recover for the death of decedent. Plaintiff had judgment, and defendant brings error. Reversed.
D. H. Leonard and V. B. Archer, for plaintiff in error.
Chas. E. Hogg, N.C. Prickett, and Jas. H. Couch, Jr., for defendant in error.
This was an action of trespass on the case, brought in the circuit court of Jackson county on 22d March, 1892, by Poling, as administrator of C. Swain, against the Ohio River Railroad Company, for causing the death of his intestate, C. Swain which resulted in a judgment for plaintiff for $3,000, from which defendant has obtained this writ of error. The assignments of error will be considered somewhat in the order made.
1. The court erred in overruling defendant's demurrer to the declaration. The declaration contains three counts, and the demurrer is to the declaration and to each count. In Hawker v. Railroad Co., 15 W.Va. 628, it is held that a declaration against a railroad company for negligently and wrongfully killing the plaintiff's cattle on its track need not state the acts of omission or commission which constitute the negligence and wrong. It is neither usual nor necessary, in this state to specify the acts or omissions of defendant which constitute the negligence. This is matter of proof, and need not be specified in the declaration. It was not specified in the declaration in the case of Blaine v. Railroad Co., 9 W. Va. 253, nor in Baylor v. Railroad Co., Id. 270; and the declarations in these cases were held good on demurrer. It is good if it contains the substantial elements of a cause of action; and the demurrer must be overruled, unless there be omitted something so essential to the action that judgment according to law and the very right of the cause cannot be given. But the declaration must set forth the duty which has been neglected, and aver the neglect. Railroad Co. v. Stark, 38 Mich. 714. The essential ground or principal subject matter of complaint, with such matter of inducement as may be necessary to lead up to or render it intelligible, introduced and averred with time and place in the technical modes of expression suited to the action, was all that was ever necessary under the strictest forms of common-law pleading. The first count avers that plaintiff's intestate lost his life by reason of the negligence of defendant in failing to keep its mail crane in safe condition, decedent being at the time a traveler on the highway, and without fault on his part; giving the circumstances with great particularity. Necessary implications of fact and matters of law need not be averred. It avers that it was defendant's duty to keep at all times a proper and safe mail crane at Douglas station, and that by the neglect of such duty defendant caused his intestate's death; that is, defendant's duty to decedent as a traveler on the highway. The second count avers the duty of defendant to keep its said mail crane and appliances and railroad track safe and free from danger to the traveling public, and to all persons rightfully at or near said crane and railroad; that defendant neglected such duty; that in consequence thereof decedent lost his life while on and near the public road, and without fault on his part. The third count is substantially the same. The averments that the father Newman Swain, sustained damage by reason thereof, may be regarded as impertinent, and therefore may be disregarded as surplusage, as he is not the plaintiff. And the declaration concludes in the usual form: "And thereupon the said plaintiff says that by reason of the premises," etc., "and by force of the statute in such cases made and provided, an action hath accrued to him, as such administrator as aforesaid, to have and demand of and from the said defendant, for and by reason of the grievous wrongs and injuries in said three counts mentioned, damages to the amount of ten thousand dollars, for the uses and purposes in said several counts mentioned, and therefore he brings this suit."
By the statute of this state giving the right of action in such cases, the action is brought by and in the name of the personal representative of such deceased person, and the amount recovered in any such action shall be distributed to the parties and in the proportions provided by law in relation to the distribution of personal estate left by persons dying intestate, (Code, §§ 5, 6, c. 103;) damages given not to exceed $10,000, and barred in two years, (see Statute of Descents and Distributions, c. 78.) It will be seen by section 10 that to the state shall accrue all the personal estate of any decedent of which there may be no other distributee. It may be that the state would not take; in which event it would certainly not be improper to aver that there are distributees, but not necessary, because it must be assumed that kindred exist, and it need not be averred. Cooley, Torts, (2d Ed.) top p. 317. The demurrer was properly overruled.
In this case the court has certified all the evidence under section 9, c. 131, Code, from which the material facts appear to be as follows: In 1886 the defendant company built its road along the Ohio river, through the county of Jackson, where the death of Charles Swain, the subject matter of this suit took place. There was an old county road of long standing leading from Douglas landing, in Grant district, on the Ohio river, back to Murrayville, on the turnpike. By order of 13th April, 1886, the county court of Jackson county "granted its consent to the said company to construct, maintain, and operate its railroad across any highway or public road in said districts of Ravenswood, Grant, or Union, in this county, when necessary to do so, but upon the following conditions: That if said railroad company shall, by the building of its said road or otherwise, obstruct any public road in this county, it shall put the road obstructed in as good condition at every crossing of said railroad as it was before the obstruction, and in all other respects according to law." In the fall of 1886 the construction company building the railroad along the Ohio river, at the point called "Lone Cedar," or "Douglas Landing," changed to the old county road, moving it down about 100 feet, made a crossing over the track 16 feet wide, and graded the road from there to Douglas landing, at the river; but the road surveyor refused to receive that part of the road from the railroad to the river. In the winter of 1886-1887 the river washed away the new road next to the river. The road surveyor then had a new road made from the crossing into the old road, on the river side of the railroad, which has...
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