Carrico v. West Virginia Cent. & P. Ry. Co.
| Decision Date | 24 March 1894 |
| Citation | 19 S.E. 571,39 W.Va. 86 |
| Parties | CARRICO v. WEST VIRGINIA CENT. & P. RY. CO. |
| Court | West Virginia Supreme Court |
Submitted January 30, 1894.
Syllabus by the Court.
1. In an action to recover damages for injury to a plaintiff's arm, necessitating its amputation, it is not error to allow the plaintiff to exhibit to the jury the naked remnant of the arm.
2. The evidence of a witness given on a former trial of a civil case, who has since died, may be proven on a subsequent trial of the case.
3. The longhand notes made by the sworn stenographer who took the evidence upon a former trial of the case are the best evidence of such evidence of the dead witness, and should be used, or the nonproduction legally accounted for, on a second trial; but where those notes show that the dead witness made in his evidence an illustration merely, and do not show what that illustration was, or in any way convey it to the second jury, a witness may be used to prove what such illustration was.
4. It is the absolute duty of a railroad company to keep its track free from dangerous obstructions of every sort, so that its cars may pass safely; and, if a passenger is injured by reason of any such obstruction along the line of its road the burden is upon it to prove that the accident was the result of the plaintiff's own negligence, or that the most thorough and perfect diligence could not have foreseen and prevented the injury. Neither can the company relieve itself from liability as to the condition and construction of its road by confiding duties which it owes to passengers to other hands, whether independent contractors or not.
5. The doctrine of the nonliability of one for the negligence of another because the latter is an independent contractor does not apply to relieve the former from liability for the omission of a duty imposed upon him by law in behalf of the safety of the public.
6. If a railroad company, while using its track for the carriage of passengers, engages in a work to be done on its road, and in the immediate proximity to its track an accident happens to a passenger by reason of an obstruction of the track preventing the safe passage of the cars, arising from negligence in the performance of the work, it is no defense to the company to show that it had placed the work in the hands of an independent contractor, and that his carelessness caused the obstruction.
7. Contributory negligence. Proximate cause. To debar a plaintiff from recovery of damages for an injury from negligence, his negligence must be the proximate cause of the injury. When both parties are chargeable with negligence, the plaintiff cannot recover if his negligence contributed in any degree to his injury; but, if it did not contribute to it in any degree, he may recover, his negligence not then being contributory, because not the proximate cause of the injury but only remote from it, or collateral to it; and the defendant's negligence is in such case the proximate cause of the injury.
8. Though the negligence of the plaintiff be in character contributory, yet, if his injury would have occurred from the defendant's negligence just the same if the plaintiff had been in no wise negligent, the plaintiff is not prevented by his negligence from recovery.
9. Though a plaintiff be chargeable with negligence contributing to the injury, yet, if the defendant know of the danger to the plaintiff arising from his negligence, and can by ordinary care avoid the injury, but does not, he is liable for his negligence, notwithstanding the plaintiff's negligence.
10. Instructions. An instruction is abstract if no evidence tends to show the facts it supposes, and ought not to be given.
11. If an instruction has been given, this court will not reverse a judgment because of it, if there is any evidence tending to prove the fact it supposes, though that evidence be very weak in the opinion of this court.
12. Things which may be considered in assessing damages for injury to person.
13. An instruction ought never to assume as proven the facts which it supposes, but ought to be hypothetical; yet, if such an instruction has been given, and the appellate court sees from the record that those facts were proven beyond controversy, and were conceded or tacitly conceded, and not a subject of controversy on the trial, such improper instruction will not be ground for reversal if correct in law.
14. An instruction which could not possibly have prejudiced the party, though incorrect or abstract, will not be ground for reversal; but it must be very clear that it could not have hurt the party complaining of it.
15. If a party who has caused to be submitted to the jury particular questions of fact allows the jury finding a general verdict to be discharged without asking the court to have them answered, he is deemed to have waived such answers.
Error to circuit court, Tucker county; Joseph T. Hoke, Judge.
Action by Joseph B. Carrico against the West Virginia, Central & Pittsburgh Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.
C. W Dailey and L. D. Strader, for plaintiff in error.
B. B. Dovener, J. J. Coniff, and A. B. Parsons, for defendant in error.
This case has been once before in this court. 35 W.Va. 389, 14 S.E. 12. The action was to recover damages for injury to the arm of the plaintiff from collision with a pile of rock standing near a railroad track of a passenger coach on which the plaintiff was a passenger. The plaintiff recovered a verdict and judgment for $9,000, and the railroad company has brought the case to this court on writ of error.
Question 1. Did the court err in allowing the plaintiff to unclothe and exhibit to the jury the shoulder from which the arm had been severed by amputation? Counsel for plaintiff in error while insisting on this point, cites no authority to sustain his contention. Of course, evidence must be relevant, as tending to establish some material matter in the case. Is this at all relevant? The plaintiff had a right to prove the hurt, and that it had entailed lasting injury by causing the amputation and loss of his arm. He could prove that by oral evidence. He could himself stand before the jury for ocular demonstration of the fact; and why may he not intensify and make more certain the fact by inspection of the naked shoulder itself? It is only more and more conclusive evidence upon a fact which he was entitled to prove, and, being relevant, we cannot exclude it because there may have been danger of inspiring sympathy in the jury and increasing damages.
Question 2. Did the court err in permitting the witness Coniff to give evidence of the evidence of Sydney Harris on a former trial he having died before the second trial? It seems clear that the law allows evidence to prove the evidence on a former trial of a witness since deceased. 1 Greenl. Ev. § 163; Rice, Cr. Ev. § 224. But this is said not to be sustained by decisions in Virginia or West Virginia. In Finn's Case, 5 Rand. (Va.) 70, it is asserted that such evidence is admissible in civil cases, but not in a criminal case. This was obiter as to a civil case, as the case was a criminal case, and perhaps obiter as to a criminal case as to a dead witnes s, as the witness was one out of the state. In Brogy's Case, 10 Grat. 733, that case is recognized as deciding that such evidence is not admissible in criminal cases, and evidence of what a witness for the prisoner said on a former trial, though offered by the prisoner, was rejected. How far these cases settle the question as to the admissibility of evidence of a deceased witness on a former trial is immaterial here. Though not binding, I think the opinion of Judge Brocken-brough in Finn's Case, that in civil cases the evidence of such deceased witness is admissible, is clearly good law, harmonizing with the vast volume of authority elsewhere. It has been so held in Lee's Adm'r v. Hill, 87 Va. 497, 12 S.E. 1052. The only serious question here is as to the mode of proof in this case. The plaintiff proved what the dead witness had stated by Coniff, and not by the evidence as taken in shorthand and written out in longhand by the stenographer on the first trial, and the appellant's counsel contends that the stenographer's report was the best evidence, and should have been used, because the statute (Code 1891, p. 1062, § 3) makes it official. It seems to me that, as this act declares the reporter's notes official, and the best authority in any matter of dispute, and provides that they shall be used by the parties in any proceedings wherein they may be required, such notes must be used, or an excuse given before substitutionary evidence can be given. I do not regard these notes as technically primary evidence in a legal sense, but the clauses of the act just mentioned themselves make the notes in effect primary. Why, under these clauses, evidence by a witness should be resorted to in a second trial of the same case between the same parties, instead of these notes, I cannot see, looking at the statute. The legislature surely meant it to be the highest authority on the evidence between the same parties in that case, on that trial or a new trial, because taken by a sworn stenographer, in presence of court, witness, parties, and counsel, and presumably verified, and therefore more apt to be reliable than a witness stating it. But for those features of the statute, no doubt any witness could be called to prove the evidence of the dead witness. The opinion by Judge Lucas, touching this statute, in Cummings v. Armstrong, 34 W.Va. 1, 11 S.E. 742, leans in this direction. But, be that question as it may, suppose the stenographer's notes be inadequate to convey to the second jury what...
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