Nuzum v. Pittsburgh, C. & St. L. Ry. Co.
| Decision Date | 05 November 1887 |
| Citation | 4 S.E. 242,30 W.Va. 228 |
| Parties | NUZUM v. PITTSBURGH, C. & ST. L. RY. CO. |
| Court | West Virginia Supreme Court |
Submitted September 12, 1887.
Syllabus by the Court.
Upon a motion of a defendant to exclude from the jury the evidence introduced by the plaintiff, the defendant will be considered as a demurrant, and the plaintiff as demurree, and the motion to exclude as a demurrer to the evidence.
Such a motion to exclude evidence will be considered as admitting the truth of all the evidence introduced by the plaintiff (who is treated as demurree,) and all inferences therefrom that can fairly be inferred by a jury, and as waiving all the evidence on the part of the defendant, (who is treated as the demurrant,) which contradicts that offered by the demurree and all inferences from his own evidence which do not necessarily flow from it.
Upon the hearing of such motion, the court should consider the evidence which is asked to be excluded with all the favor and draw therefrom all the inferences, it would be entitled to if the party making the motion to exclude had demurred to the evidence; and in such a case, if the party offering the evidence would, on a demurrer thereto by the opposite party be entitled to a judgment thereon in his favor, then the court should not exclude the evidence from the jury.
If the servants of a railroad company, having in its charge one of its engines and trains running within the corporate limits of a city in this state, to and over a public wharf wherein, shall fail or neglect to give notice at least 60 rods before its approach to such wharf by ringing the bell or blowing the whistle of the locomotive for a sufficient time to give notice of its approach thereto, such failure or neglect is of itself negligence on the part of such railroad company.
The fact that pedestrians are accustomed to travel on a railroad at a particular place, makes it the duty of such railroad company to exercise greater caution and prudence in the operation of its road at that place.
If such company permit a train of its cars to be moved at that place, without having some of its servants in position to give warning of its approach, and to control its movements, these facts are of themselves acts of negligence.
A case in which it was held that the circuit court erred in excluding from the jury evidence offered by the plaintiff, and instructing the jury to find for the defendant.
Error to circuit court, Ohio county.
This is an action brought in the circuit court of Ohio county by Frank P. Nuzum, administrator of George Bunfill, for the use of his widow and only child, against the Pittsburgh, Cincinnati & St. Louis Railway Company, for the recovery of damages for causing the death of plaintiff's intestate by the negligence of the defendant's servants and agents. The declaration contains three counts. The first count avers that the defendant, in the county of Ohio, on the fifth of December, 1881, on the track of a certain railroad running within the corporate limits of the city of Wheeling, in said county, and within the corporate limits of said city, then used and operated by the defendant for the purpose of running steam locomotive engines and cars on and over the same, did carelessly and negligently, with great force and violence, run its cars upon and against the said George Bunfill, and then and there did so greatly would and injure him that by reason thereof he died, and that his death was caused by the said wrongful act of the defendant. The second count substantially avers the same, with the additional facts that, at the time the injury was done, said Bunfill was lawfully and without negligence on his part crossing the track of the defendant's railroad, within the corporate limits of the city of Wheeling, which injury caused the instant death of Bunfill; and that his death was caused by the negligence and carelessness of the company's servants in failing and wholly neglecting carefully to conduct and run said cars in the corporate limits of said city, and in neglecting to give sufficient signal or alarm on the approach of said cars in said corporate limits of the city of Wheeling, and that his death was caused by such neglect and default. The third count substantially avers the same facts, and that defendant, by its servants, did then and there so carelessly and negligently manage and conduct a train of its cars that, by reason thereof, the cars in said train were detached from the engine, to which they had theretofore been attached, and, being so detached and separated, ran with great force and violence against said Bunfill, who was then and there passing in said city near the public wharf, and in the direction of the defendant's passenger depot, and then and there instantly killed him. To this declaration the defendant demurred; which demurrer being overruled, it pleaded "not guilty," on which plea issue was joined. This issue was afterwards tried by a jury; but, being unable to agree upon a verdict, they were discharged. The issue was again tried by a jury, who on the sixth of October, 1884, rendered a verdict in favor of the plaintiff for $3,000 damages. On the motion of the defendant, this verdict was set aside, and the plaintiff excepted, and his bill of exceptions sets forth all the evidence offered on the trial. On the twentieth September, 1886, the case was again tried by a jury, and the plaintiff, to maintain the issue on his part, introduced and gave in evidence all testimony introduced by him on the second trial as set forth in his said bill of exceptions, together with the admissions of the defendant, made to the jury in open court, "that the defendant is, and at the time of the alleged grievance in his declaration complained of was, a corporation, operating, using, and running its cars and engines over and upon the railroad in the declaration mentioned, and that the plaintiff's intestate was killed on said railroad at the time and place named in the declaration, and thereupon rested his case before the jury; and thereupon the court, on the motion of the defendant, excluded from the jury the testimony so offered by the plaintiff, on the ground that it was insufficient to sustain the issue on his part, and directed the jury to render a verdict in favor of the defendant, which they did. To this action and opinion of the court the plaintiff again excepted, and moved to set aside the said verdict and grant him a new trial; which motion the court overruled, to which the plaintiff again excepted, and the court, in his last bill of exceptions, certified all the evidence introduced on the trial, and thereupon entered judgment against the plaintiff upon said verdict. From this judgment, as well as from the judgment setting aside the verdict rendered on the second trial of the issue, the plaintiff has obtained a writ of error.
R. White, for plaintiff in error.
J. Dunbar, for defendant in error.
WOODS, J., (after stating the facts as above.)
The plaintiff in error assigns as error (1) the action of the court in setting aside the verdict in his favor for $3,000 (2) in excluding from the jury the evidence introduced by him on the third trial of the issue, and directing the jury to render a verdict in favor of the defendant; and (3) in refusing to set this last verdict aside, and grant him a new trial. The evidence introduced by the plaintiff on the last trial consisted of the admissions of the defendant made in open court, as already set forth, and the testimony of sundry witnesses, all of which is fully set forth in the last bill of exceptions. None of the evidence offered by the plaintiff was contradicted or in any manner impeached, and no evidence was offered by the defendant. From the evidence of the plaintiff it clearly appears that the plaintiff's intestate, at the time of his death, was a very large, stout, healthy, sober, moral, industrious man, not quite 22 years of age; that he had a wife to whom he was married on the thirteenth January, 1881, by whom he had one child; that he was capable of making, and did make, a comfortable living for himself and wife, working part of the time while at home raising something for himself or working for others; that during part of the two years preceding and at the time of his death he was employed as a deck-hand on the steam tow-boat Belle Prince at $25 per month and his boarding; that deceased, between 8 and 9 o'clock in the morning on which he was killed, left the boat at its landing, and walked up a much frequented path leading from the landing to the defendant's railroad, and crossing the same 50 or 60 yards north of the defendant's platform; that, from the point this path intersects the railroad track, a person standing on the track looking north could see an engine or train 300 yards, but looking at the engine from that point you could not see the train; that defendant's passenger depot is at the north end of the public wharf, and its freight depot at the south end of the wharf, more than two squares distant; that defendant's railroad, for a considerable distance north of the point of intersection of said path to the center of the distance between its depots, has a descending grade, and that a switch opened onto a side track at a point nearly in front of its passenger depot; that the defendant, in order to transfer the engine drawing the train to its freight depot, was accustomed to cut loose the engine from the rest of the train while in motion at a distance of not less than 800 feet from the switch, and then increase the speed of the engine, and run ahead of the train, so as to reach the switch, take the side track, and await the rest of the train, moving by its own momentum and the force of gravitation, until it passed the...
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