Beall v. Petitioner

• Decision Date: 22 November 1893
• Citation: 38 W.Va. 525
• Court: West Virginia Supreme Court
• Parties: Beall v. Pittsburgh C. & St. L. R'y Co.

38 W.Va. 525

Beall

v.Pittsburgh C. & St. L. R'y Co.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1893.

Decided November22, 1893.

1. Damages Contributory Negligence Railro ad Companies.

One of the rules of a railroad company reads as follows "They'7 (the brake men) "are charged with the management ef the brakes, and the proper display and use of the signals. They must examine and know for themselves that the brakes, ladders, running boards, steps, etc., which they are to use, are in proper condition, and, if not, put them so, or report them to the proper parties, and have them put in order before using." Held, If a brakeman on a train, knowing such rule of the railroad company, also knowing that the nut on top of the standard of the brake, used to hold the brake-wheel on, was off, but without putting it in proper condition himself, or reporting it to the proper parties, uses it unnecessarily to check the speed of the train, by which use the brake-wheel comes off, throwing him onto the track, whereby he is injured, such brakeman is guilty of contributory negligence, at least; and in such case no recovery should be had against the railroad company.

2. New Trial.

Where the verdict of a jury is wholly without evidence on a point essential to a rinding or the evidence is plainly insufficient to warrant such rinding by the jury, the same should be set aside, and a new trial awarded.

J.J.Jacob for plaintiff in error cited 24 W. Va 37; 27 W. Va. 145; 28 W. Va. 617; 100 U S. 213; 32 W. Va. 487; 16 W. Va. 807, p't 16 Syll.; 11 W. Va. 34; 25 W. Va. 573; 27 W. Va. 163; 35 W. Va. 889; 128 U. S. 91; Id. 443; 130 IT. S. 649; 27 W. Va. 32, 53; 27 W. Va. 285, p't 5, 8, Syll.; 34 W. Va. 500; 14 W. Va. 180; 116 CT. S. 642; 46 Ill. 99; 119 Ill. 51; 72 Ill. 138; 60 Mich. 502; 31 W. Va. 143; 33 W. Va 135; 55 Ill. 492; 36 W. Va. 83; Id. 415.

J. B. Summekville for defendant in error cited 20 Mich. 105; 14 S. E. Pep. 432; 12 S. E. Rep. 819; 33 Ohio St. 227; 67 Mo. 239; 43 Ill. 420; 29 W. Va. 98; 6 S. E. Rep. 53; 10 S. E. Rep. 39; 16 S. E. Rep. 62; 83 Va. 288; 46Ill.99; 72 Ill. 138; 14 Am. & Eng. Ency. of Law 863; 14 S. E Rep. 12; 42 Wis. 520; 54 Wis. 257; 92 Ill. 139; 93 111. 580; 48 M. E. 113; 119 Ill. 51; 6 Sup. Ct. R. 490 (opinion of Field, Judge, 597); 14 Am. & Eng. Ency. of Law 66; 17 S. E. Rep. 386; 5 Ohio St. 541; 45 Mich. 212.

Holt, Judge:

On the 4th of May, 1891, at 6:40 p. m., Lucian Beall a brakeman on the defendant company's railroad, while using his brake in the city of Wheeling was thrown off the moving car, run over and killed. The immediate cause of the accident was the fact, that, when he attempted to check speed by turning the brake-wheel, it came off the brake rod, thus causing him to fall off in front of the moving train. The nut at the top of the rod, which holds down the brake in its place, was then and there dis- covered to be missing, and that part of the rod where the wheel rested, and where the nut was screwed on, was rusted, indicating that it had been off for two or three days or longer. He had applied the same brake once or twice during the same trip. The defendant had employes whose duty and business it was to inspect ears coming in and going out, taking them as a whole when the train was made up. In addition to that a written rule of the company made it the duty of and required of its brakemen to examine and know for themselves that the brakes which they were to use were in proper condition, and if they were not, put them in such condition, or report them to the proper person and have them put in order before using. Of this rule decedent had been informed before the accident.

On July 26, 1891, Grafton Beall, the administrator, brought in the Circuit Court of Ohio county against the railway company an action on the ease, claiming ten thousand dollars damages, the maximum fixed by the statute in such cases. The defendant appeared and demurred to the declaration, and his demurrer was overruled. The defendant then tendered a special plea in writing, to which plaintiff objected, but the objection was overruled, and the plea was filed; also, the general issue, "Not guilty;" and issues were joined. But afterwards on motion of plaintiff, the special plea was stricken out, and defendant excepted. Then came a jury, who, after hearing the evidence, arguments of counsel, and instructions of the court, brought in a verdict for plaintiff, assessing his damages at two thousand dollars which the defendant moved the court to set aside and grant a new trial; and the court after taking time to consider set the same aside and awarded a new trial, for reasons stated stated in a written opinion, found filed as a part of the brief of defendant's counsel, anel to this plaintiff excepted and obtained this writ of error, as allowed by the ninth clause of section 1, e. 185, Code 1891, without waiting for the new trial to be had.

The plaintiff assigns three errors: first, in refusing to allow the witness Charles Ray to answer certain questions propounded by plaintiff; second, in granting a new trial without requiring the defendant to pay costs; and third, in setting aside the verdict, and granting a new trial.

The question propounded by plaintiff, and ruled out by the court, is as follows: "Now, with the train running at the rate of speed you describe, what opportunity would Lucian Beall have had, when going to turn on the brake, to have examined to see whether or not the nut was safely and securely fastened on the wheel?" The record discloses no ground of objection by defendant, or of rejection by the court, The witness had already said that the train was running faster than its usual rate of speed, and that, if Mr. Beall had taken time to look, he could have seen whether the nut was on or off. Plaintiff then changed the form of his question:" What opportunity would he (Beall) have to make an examination of the brake wheel?" This was also objected to and ruled out. The witness then stated that it was getting rather dusk when the accident happened, but was not quite time for "our lamps," but was getting that way. "The wheel and standard are dark red, as iron is. He did not see any of the nuts that went on the brake wheel that night, but had seen them before." Counsel for plaintiff then proposed to ask the following questions: "How did the color of the nut compare with the color of the rod and brake wheel?" but the defendant objected, and the objection was sustained, and plaintiff excepted. The counsel for plaintiff explained to the court the purpose and object of the questions; and, as far as I can see, the evidence attempted to be adduced was competent and relevant. But the plaintiff was not injured by the exclusion, for the verdict was in his favor, and the court permitted a subsequent witness called by defendant to be examined on the subject; so that the error is not likely to be repeated. See Ruffner v. Hill 81 W. Va. 428, 431 (7 S. E. Rep. 13.)

As to the second error assigned the law on the subject now reads as follows: "New trials may be granted upon the payment of costs or with costs to abide the event of the suit as to the court may seem right." Code, (1891) c. 138, s. 5. The court exercised its discretion in permitting the costs to abide the event of the suit, as authorized by the statute. See Miller v. Rose, 21 W. Va. 291; Shrewsbury v. Miller, 10 W. Va. 115; Ruffner v. Bill, $1 W. Va. 428 (7 S. E. Rep. 13). These questions, however, are treated by the counsel as of no importance, and properly so, unless the case should be again tried, when" they may not arise: and the same may be said in regard to some of the instructions.

The main question, the only one of practical importance in the present attitutde of the case, is the one discussed by Judge Paul, who presided at the trial, and whose written opinion is given below, as it appears in defendant's brief. I regard it as a fair and accurate statement of the substance of the material facts, to be gathered from the testimony in the record, cautiously restrained within the limits of no conflict, together with a review of some authorities be aring upon the point of law involved, under the doctrine of contributory negligence.

But counsel for plaintiff contends that, whatever maybe the rule in Illinois and in some other stares as to the duty of the railroad to furnish safe machinery and appliances, and as regards thereafter continually inspecting and keeping the same in repair, such restricted view of the company's duties is certainly not in accord with the rule in this state, as stated in the cases of Cooper v. Railroad Co., 24 W. Va. 37; Riley v. Railroad Co., 27 W. Va. 145; Madden v. Railroad Co., 28 W. Va. 610; Johnson v. Railroad Co., 36 W. Va. 83 (14 S. E. Rep. 432); Daniels Adm'r v. Railroad Co., 36 W. Va. 415, 416 (15 S. E. Rep. 162); that conceding that no damages can be recovered, if the brakeman knew or could have known by ordinary attention the imperfect and dangerous condition of the brake, when he used it, yet that was a question of fact fairly placed before the jury for their decision almost in the precise language of this Court in the case of Humphreys v. Newport News M. V. Ry Co., 33 W. Va. 135 (10 S. E. Rep. 39) and Boffman v. Dickinson, 31 W. Va. 142 (6 S. E. Rep. 53); and the jury in response thereto having found against the defendant, that the cases in Virginia and West Virginia did not authorize the court to reverse such finding and to set it aside.

Among the rules of law prescribing the duties of railroads as common carriers, according to our cases cited above, I regard no one as more exacting or as standing on higher ground of public policy, than the one which exacts in a reasonable degree continued supervision, inspection and watchfulness to see that all machinery and appliances are kept in good and safe repair, and the track kept safe and clear. Such watchfulness is the price of safety to their own people, as well as to the public; and...