Bobbins v. Railroad Company.

• Decision Date: 12 November 1907
• Citation: Bobbins v. Railroad Company., 62 W.Va. 535 (W. Va. 1907)
• Parties: Bobbins v. Railroad Company.
• Court: West Virginia Supreme Court

62 W.Va. 535

Bobbins

v.Railroad Company.

Supreme Court of Appeals of West Virginia.

Submitted June, 19, 1907.

Decided November 12, 1907.

1.Railroads Killing Stock Action Pleading.

The form of declaration laid down in Hogg's Pleadings and Forms, page 343, against a railroad company ''for the negligent killing of plaintiff's horse while on its track" is approved as sufficient on demurrer without alleging more particularly than therein stated acts of negligence of omission or commission, (p. 537.)

2.Pleading Declaration.

The object of the declaration is to set forth the facts which constitute the cause of action, so that they may be understood by the defendant, by the jury who are to ascertain the truth of the allegations and the court who is to pronounce judgment, (p. 537.)

3.Railroads Killing Stock Pleading.

An allegation of negligence in such declaration implies a duty on the part of the defendant as well as a breach of that duty.(p. 527.)

4.Same Care Required.

It is the duty of the servants of a railroad company in charge of its trains to keep a lookout for stock upon the track and if stock happens to be on the track and is killed by the train the company is liable for the value of the stock so killed if the killing could have been avoided by the exercise of ordinary care; that is, if it could have been seen in time to have avoided the killing by the use of ordinary care, though it may not actually have been seen in time to avoid the killing.(p. 538.)

Error to Circuit Court, Wetzel County.

Action by G. D. Bobbins against the Baltimore & Ohio Railroad Company.Judgment for plaintiff, and defendant brings error.

Affirmed.

Thos. P. Jacobs, and F. V. Iams, for plaintiff in error.

E. L. Robinson and Glen Snodgrass, for defendant in error.

McWhorter, Judge:

This was an action of trespass on the case for the killing of a horse by the defendant on its railroad track.The defendant demurred to the declaration which demurrer was overruled, the plea of not guilty entered, a jury impannelled and after the evidence was all in the defendant demurred to the evidence in which the plaintiff joined.The jury returned a conditional verdict in favor of the plaintiff for $300.00.The defendant moved the court to set aside the verdict, which motion was overruled and the court took time to consider of its judgment of the demurrer to the evidence, and on the 24th day of October, 1906, the court overruled the demurrer to the evidence and entered jugment upon the verdict.

Plaintiff in error seems to rely strongly upon its demurrer to the declaration.The declaration contains but one count and the same has frequently been held by this Court to be sufficient.It is contended that no facts are averred in the declaration tending to show negligence in any degree and that no act of negligence was alleged.The declaration alleges that "the said defendant then and there, by its said servants and agents, so improper and negligently used, managed, run and operated its said locomotives and cars that by and through the negligence, carelessness and improper conduct of the said defendant, by its servants and agents in that behalf, the locomotive and cars of the said de- fendant then and there ran upon and against the said horse of the said plaintiff, and thereby then and there killed the said horse; and the said horse of the said plaintiff thereby then and there became and was rendered of no use or value to the said plaintiff."Here is a distinct allegation that the defendandant by its servants, &c, carelessly and negligently ran its locomotive and cars upon and against the said horse of the plaintiff and thereby killed the said horse.This is clearly a distinct act of negligence to be complained of and not simply a conclusion of the pleader as contended.

Counsel for plaintiff in error seem to rely most strongly upon the case of Snyder y. Electrical Co., 43 W. Va. 661, which it is claimed modifies the rule heretofore established where it is said at page 663: "I take it that it would not be enough simply to say that the company negligently killed a horse."The declaration under consideration goes further and says how the horse was negligently killed by the defendant and its servants, to-wit: by carelessly and negligently running its locomotive and cars upon the horse; and this allegation of negligence clearly implies the duty of the defendant as well as the breach of that duty.

In Hogg's PI. & Forms, section 140, it is said:

"It is well settled and may be laid down as a general rule, that in a declaration charging negligence it is not necessary to state the particular acts which constitute the negligence.A declaration will be treated as alleging by implication every fact which can be implied from its averments by the most liberal intendment.The object of the declaration is to set forth the facts which constitute the cause of action, so that they may be understood by the party who is to answer them, by the jury, who are to ascertain the truth of the allegations, and the court who is to pronounce judgment."

In Railway Co. v. Law ton, 55 Ark. 428, at page 433the court, speaking through Judge Hemingway, says:" The word 'negligence' implies a duty as well as its breach, and the fact can never be found in the absence of a duty."

In Blaine v. Railroad Co., 9 W. Va. 254, this declaration is held to be good on demurrer, and the declaration at bar is in strict conformity with the form laid down in Hogg's PL & Forms, at page 343.See alsoHawker v. Railroad.Co., 15 W. Va. 628;Washington v. Railroad Co., 17 W. Va. 190;Harperv. R. R. Co., 36 Fed. Rep. 102;Scott v. Hogan, 72 Iowa 614, 34 N. W. 444;McFadden v. Ry. Co., 92 Mo. 343, 4 S. W. 689.The declaration is good under section 3849 Annotated Code of 1906, where it is provided that "On a demurrer(unless it be to a plea in abatement)the court shall not regard any defect or imperfection in the declaration or pleadings, whether...