Bias v. Chesapeake
| Decision Date | 15 April 1899 |
| Citation | 46 W.Va. 349 |
| Court | West Virginia Supreme Court |
| Parties | Bias v. Chesapeake and Ohio Railway Company. |
syllabus by the court.
1.Pleading Declaration Railroads Death by Wrongful Act.
A declaration for negligent killing, which charges, in effect, that the deceased, while on the track of the defendant, was carelessly and negligently pushed against, and struck by, a locomotive engine and cars belonging to the defendant, and in the control, custody, and management of its employes, and thereby received injuries from which she died, is sufficient. (p. 354).
2.Evidence Death by Wrongful Act Railroads.
Testimony of witnesses relating to the physical condition of the place and its surroundings where an accident occured is proper evidence to go to the jury. (p. 355).
3.New Trial Exceptions Record Waiver.
Numerous objections and exceptions to evidence taken during the progress of the trial, unless shown, by proper order or bill of exceptions, to have been specifically brought to the attention of the court on motion to set aside the verdict of the jury, will be regarded as waived. (p. 354).
4.Railroads View by Jury Instructions Harmless Error.
The fact that a small dress, belonging to, and worn by, the deceased when injured, is placed by the sheriff on the railroad track at the point where the accident occurred, while the jury are viewing the place and its surrounding's, and while they are looking down the track from the point the engine first came in sight of the deceased, is not sufficient misconduct to require the discharge of the jury, nor, after a cautioning instruction, is it sufficient error to justify the setting aside their verdict; it beingmerely the illustration or demonstration of a physical fact, about which the defendant can introduce contradictory evidence or can examine the plaintiff's witnesses. (p. 355).
5.Instructions Record.
Instructions copied in, but not properly a part of, the record, will not be considered by this Court, (p. 354).
6.Railroads Negligence Trespassers.
The negligent killing of helpless trespassers on the track by its employes is one of the risks that a railroad company assumes in accepting the donation of its franchises from the public, and in undertaking to operate a railroad through an inhabited country. (p. 354).
7.Railroads Negligence Trespasses Proximate Cause,
If the employees of a railroad company, fail to keep a proper lookout, consistent with their other duties, for helpless trespassers on the tracks, and thereby such helpless trespasser is negligently killed, such failure is the proximate cause of such killing, and the company will be liable therefor, notwithstanding the prior negligence with which such helpless trespasser may be on such track. But, if such trespasser is not helpless, the duty of keeping a lookout devolves upon him as well as the trainmen, and if an accident happens by reason of their mutual negligence, no recovery can be had. (p. 358).
8.Negligence of Parents.
The imputed negligence of parents discussed. See both opinion and dissenting opinion. (p. 359).
Error to Circuit Court, Cabell County.
Action by John E. Bias, administrator, against tbe Chesapeake and Ohio Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed by Divided Court.
Simms & Enslow, for plaintiff in error.
O'Bierne & McDermit and E. M. McCallister, for defendant in error.
Dent, President:
This abstract is taken from defendant' petition. It was further shown in evidence that there was a clear view of the point on the track where the child was struck eastward six hundred to seven hundred yards, in the direction in which the train was coming. There were no obstacles in the way, and it was bright, sunshiny evening. The child had been at home about ten minutes before it was struck.
The engineer testifies that he did not see the child until he was about two hundred yards of it, and he first thought it was a red rooster, and, as soon as he recognized it to be a child, he made every effort to stop the train, and managed to stop if in five hundred and ninety feet, but too late to save the child; that there was both a glare of light and shadow along the track, which interfered with his vision; that he was keeping a vigilant lookout, consistent with his other duties; that the train was behind time, and he was running rapidly to make it up; that he was looking right over the spot where the child was, to see if there was any signal to stop at Wilson's Station, just beyond. The fireman's evidence was about the same as the engineer's. There is some attempt to show that the child's life might have been saved by an operation after it had been struck, but this is merely speculative, and beyond the range of possibility into the realm of miracles. The attorneys could just as well contend that the child was not killed by being struck by the train, but by the operation performed by the physicians, cutting its skull open in an attempt to remove the pressure on the brain. The jury heard the evidence, and found a verdict in favor of the plaintiff for one thousand dollars. The defendant made a motion to set it aside, as contrary to the law and the evidence. The circuit court overruled the motion, and entered judgment.
The defendant relies on the following assignments of error. (1) The court erred in overruling defendant's demurrer to plaintiff's declaration. (2) The court erred in allowing the plaintiff's attorneys to ask the witnesses, John E. Bias, Mrs. J. E. Bias, and John Wilson, 'How far east of the point where the child was struck could a person standing on the track see an object the size of the child in controversy, at that point?' (3) The court erred in allowing questions 5 and 6, on page 82, to be asked J. E. Bias, and question 1, on page 83, to be asked Mrs. John E. Bias, and in refusing to strike out the answers thereto. (4) The court erred in allowing a supposed rule of the company to be read to the jury, which was not shown to be a rule of the company in force at the time of the accidents
(5) The court erred in allowing John Reid and W. W. Poin-dexter to express opinions to the jury as to the distance in which an emergency stop of a train of the description of the one in controversy could be made, they not having been shown to have had sufficient knowledge to give expert evidence. (6) The court erred in refusing to sustain defendant's objection to questions 1, 2, 3, and 4, on page 120, asked J. H. Williams on cross-examination, and in refusing to strike out the answers thereto. (7) The court erred in allowing questions 3, 4, 5, and 6, on page 144, to be asked John Clark, and in refusing to strike out his answers thereto, as said questions, regarding his seeing a chicken on the track, were irrelevant and misleading, and the asking and the answering of each of said questions was to the prejudice of your petitioner. (8) The court erred in refusing to discharge the jury upon the filing of the affidavits of P. B. Enslow, W. O. Walton, and O. J. Wilkinson, and the counter affidavit of Gordon O'Bierne, and in refusing to set aside the verdict of the jury when rendered, because of the experiments made by the jury, or in their presence, while viewing the ground at the place of accident. Said experiments, not being in the prosence of the court, were illegal and improper, and the jury, standing some six hundred yards east of the point of accident, were surrounded by very different circumstances from those surrounding the engineer on a moving train, and these said experiments were greatly to the prejudice of the petitioner. (9) The court erred in giving plaintiff's instructions 1 and 2. No. 1 does not correctly state the law, is inconsistent with instructions giving for the defendant, and misleads the jury. The jury, out of court and out of the presence of the judge, having taken evidence by way of experiment, should have been discharged, and not instructed, in plaintiff's instruction No. 2, to disregard the experiments made by them; for this was wholly ineffectual to erase any impression that may have been made on the minds of the jury by the experiment. The making of this experiment was upon a point vital in the case, and was to the prejudice of this petitioner. (10) The court erred in refusing to set aside the verdict of the jury, as contrary to the law and the evidence."
As to assignments Nos. 3, 4, 5, 6, and 7, it is sufficient to refer to the rules laid down in the cases of State v. Harr, 38 W. Va. 59, (17 S. E. 794), wherein it is held that Syl., point 4. And Gregory's Adm'r v. Railroad Co., 37 W. Va. 606, (16 S. E. 819 Syl., point 2), in these words: ...
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