Bartley v. Western Md. Ry. Co.

• Decision Date: 05 March 1918
• Citation: 81 W.Va. 795
• Court: West Virginia Supreme Court
• Parties: Bartley v. Western Maryland Railway Co.

81 W.Va. 795

Bartley

v.Western Maryland Railway Co.

Supreme Court of Appeals of West Virginia.

Submitted February 26, 1918.

Decided March 5, 1918.

1. Pleading Amendment-Neio Cause of Action.

An amended declaration alleging the act of negligence complained of to consist of suddenly and violently starting the train, after it had stopped and before plaintiff had time to alight, thereby throwing him to the ground and injuring him, instead of, as alleged in the original declaration, failure to stop the train at the station and thereby compelling plair.tiff to alight while the train was in motion, does not state a new cause of action, (p 796).

2. Carriers--Passengers Care Required.

A common carrier is held to the highest degree of care, commensurate with reasonable foresight and judgment, for the safe carrying of its passengers. 1 The slightest degree of negligence causing them injury renders the carrier liable, (p. 798).

3. Trial Injury to Passenger Instructs, Applicability to Evi-

dence.

Where a declaration consists of two counts, each alleging a distinct act of negligence and only one of them is supported by any evidence, it is error to instruct the jury they may find against defendant, if they believe either of said acts is proven. To justify such an instruction there must be some evidence tending to prove both negligent acts. (p. 798).

4. Trial Misleading Instruction.

It is likewise error, in such case, to instruct the jury that plaintiff is not entitled to recover ''under the; first count", unless he proves by a preponderance of the evidence the negligence therein alleged. Such instruction implies that the jury have the right to find against the defendant on the negligence alleged in the second count notwithstanding it is not supported by evidence, and is, therefore, misleading, (p. 798).

5. Negligence Contributory Negligence Burden of Proof.

Where the defense is contributory negligence the burden is on defendant to establish it. (p 800).

6. Carriers Injury to Passenger Contributory Negligence.

Generally it is negligence, per se, for a passenger, in full possession of his senses and faculties, to alight from a train while it is in motion, and the failure of a brakeman, who happens to be nearby, to warn a passenger standing on the steps of a car ready to alight, does not excuse such contributory negligence, (p. 800).

7. Pleading Amendment Original Declaration Considered Aban-

doned.

Where a demurrer has been sustained to the original declaration, and an amended one tiled which makes no reference to it, it is not error to refuse to permit defendant to read to the jury, as evidence of an admission, the original declaration, (p. S02).

8. Appeal and Error-Trial Motion to Exclude EvidenceWaiver.

Where testimony is admitted proving that plaintiff, several months after his injury, was confined to his bed for two or three weeks, and there is no testimony showing such confinement to be the natural and direct result of the injury, a motion to exclude it should be sustained. Such motion is not waived by failure to renew it after the taking of evidence is concluded, where the point is saved by a special bill of exceptions, (p. 802).

Error to Circuit Court, Tucker County.

Action by John P. Bartley against Western Maryland Railway company. Judgment for plaintiff, and defendant brings error.

Reversed and, remanded for new trial.

E. A. Bowers, and A. Jay Valentine, for plaintiff in error. D. E. Cuppett, and Chas. D. Smith, for defendant in error.

Williams, Judge:

Plaintiff, a passenger on defendant's train, who was injured while attempting to alight therefrom at one of defendant's stations, recovered judgment for said injury, and defendant brings error.

The overruling of defendant's demurrer to plaintiff's amended declaration is assigned as error. Counsel insist the amended declaration avers a new and different cause of action from that alleged in the original declaration, to which a demurrer had been sustained with leave to plaintiff to amend. The negligent acts averred in the original declaration, which consists of two counts, are, (1) that defendant did not stop its train at the village of Francis a sufficient time to enable plaintiff to alight, "and stopped but momentarily at said point, and plaintiff was compelled to alight from said train while it was yet in motion," and in consequence of such negligence of defendant plaintiff was hurled from the train, " while it was in rapid motion, '' with great force and violence; and (2) that defendant was also negligent in knowingly having in its service in charge of the train a conductor inexperienced in the running and operation of passenger trains. Whereas in the amended declaration, likewise having two counts, he avers in the first count the negligent act to be, that the train slowed down at the station and stopped, and plaintiff, believing it would remain standing long enough to permit him to alight, proceeded to do so, and '' was at and on the last step of the coach in which he was riding and just at the point of stepping on the defendant's platform, when said defendant negligently, carelessly, and without warning and notice to plaintiff, suddenly started said train in motion with great' force and violence that by reason of which plaintiff was violently hurled and thrown from said train," and injured. The second count is not materially different form the second count of the original declaration.

This does not constitute a departure from the original cause of action. The two declarations set out the same facts and circumstances, the same time, place and relation between the parties as passenger and carrier, and the same injury to plaintiff, caused by his being thrown while alighting from the train, the only difference being in the two statements of the particular act of negligence which constituted the proximate cause of plaintiff's injury. Notwithstanding the amendment is material and vital as it respects plaintiff's right to recover for the injury, nevertheless he had a right to amend in that respect. This court has always been liberal in allowing amendments to be made to declarations, so long as there is an adherence to the original cause of action. Findley v. Coal & Coke Ry. Co., 76 W. Va. 747, cited to support defendant's contention is not applicable. There Findley's right, although growing out of a single wrong or negligent act, depended upon one or the other of two distinct laws, one the state law and the other an act of Congress, the right depending upon the particular law he invoked and not wholly upon the physical facts and circumstances causing the injury. If the right was derived from congress it was held to be one cause of action, and if from state law another and distinct cause of action. The introduction of additional phases or circumstances of the same wrong complained of in the original declaration, if the identity of the cause of action is preserved, is not a departure. Hanson v. Blake, 63 W. Va. 560; Snyder v. Harper, 24 W. Va. 206; Clark v. Ohio River R. R. Co., 39 W. Va. 732; and Mulvay v. Haynes, 76 W. Va. 721,

The court gave five instructions for plaintiff of which defendant complains. No. 1 told the jury it was defendant's duty, as a common carrier of passengers, "to use and exercise the utmost and highest possible degree of care toward the plaintiff and see that he was safely carried to and delivered from said train at Francis without injury; and if the jury believe that the defendant in any way failed to carry out such undertaking, by starting said train before the plaintiff had safely alighted, or by having in charge of said train as conductor an inexperienced servant, then any one of said acts were acts of negligence on the part of said defendant, and if the plaintiff was injured by reason of such negligence, and the jury may render a verdict for the plaintiff for such sum as the evidence warrants, not, however, to exceed $5,-000.00". So far as this instruction defines defendant's duty and the degree of care required in the discharge thereof, it is unobjectionable. A carrier must use the highest degree of care commensurate with reasonable foresight and judgment. A carrier is liable for the slightest degree of negligence causing injury to a passenger. See Brogan v. Traction Co., 76 W. Va. 698, and Cain v. Traction Co., decided at the present term. The vice of the instruction, however, is contained in the latter part of it, wherein it submits to the jury two alleged acts of negligence, only one of which is supported by evidence, and tells them '' any one of said acts were acts of negligence, '' and that, if they believe plaintiff was injured "by reason of such negligence, '' they might find for him. True plaintiff alleged, as an act of negligence, the employment of an incompetent and inexperienced conductor, in charge of the train, but this averment was put in issue, and there is no evidence to support it. Although the conductor B. C. Smith admits, in his testimony, he was not the regular conductor who ran the train on which plaintiff was carried, he, nevertheless, proved he had been in the service of the Western Maryland Railway Company since 1903, was flagman and had been promoted as extra conductor in January, 1909, and had made this particular run as much as two weeks at a time, before October 23, 1915, the time of plaintiff's injury. Mr. Weesc, the brakeman on the train, had been in the employ of the company, on the same branch of its road, since 1905, and had also...