Cain v. Kanawha Traction & Electric Co

• Citation: 102 S.E. 119
• Court: West Virginia Supreme Court
• Decision Date: 27 January 1920
• Parties: CAIN . v. KANAWHA TRACTION & ELECTRIC CO.

102 S.E. 119

CAIN .

v.KANAWHA TRACTION & ELECTRIC CO.

Supreme Court of Appeals of West Virginia.

Jan. 27, 1920.

(Syllabus by the Court.)

Error to Circuit Court, Wood County.

Action by Charles S. Cain against the Kanawha Traction & Electric Company. Verdict and judgment for plaintiff, defendant's motion to set aside the verdict and to grant a new trial overruled, and it brings error. Affirmed.

Van Winkle & Ambler and J. W. Vandervort, all of Parkersburg, for plaintiff in error.

Reese Blizzard, R. E. Bills, C. N. Matheny, and C. M. Hanna, all of Parkersburg, for defendant in error.

WILLIAMS, P. This is the second writ of error awarded in this case. A review of it on the former writ of error is reported in 81 W. Va. 631, 95 S. E. 88, and the principles therein decided settle nearly all the questions here presented. Plaintiff's evidence is not materially different on the second trial from what it was on the first, and, although the defendant has introduced some testimony in addition to what It presented before, it is only cumulative, and not decisive of the issues; hence it would not warrant the court to take from the jury, by the peremptory instruction, which was offered by defendant and refused by the court, the questions either of defendant's negligence or plaintiff's contributory negligence.

In addition to the irreconcilable conflict in the testimony, the facts and circum-stances, from which the alleged negligence of the defendant as well as the contributory negligence of plaintiff must be determined, are such as to make them mixed questions of law and fact, and therefore proper for jury determination. Ewing v. Lanark Fuel Co., 65 W. Va. 726, 65 S. E. 200, 29 L. R. A. (N. S.) 487; Foley v. City of Huntington, 51 W. Va. 396, 41 S. E. 113; and 10 Eney. Dig. Va. and W. Va. Rep. p. 414. Plaintiff testified that he was sitting near the front end of the 'car when it stopped at Williamstown, the place of his destination, and as soon as the car stopped he picked up his suit case, rain coat, and umbrella, and started to the rear end of the car to alight; that, when he got out on the platform and started down the steps, he met a couple of ladies who were getting on the car, and backed out of their way to allow them to pass him; that as soon as they passed him he again started down the steps, and when he was near the bottom, perhaps on the step next to the bottom step, the car started with a jerk and threw him to the pavement and injured him. He does not say the car started with an unusual jerk, but that it started with the usual jerk peculiar to all electric cars on which he had traveled; that they all start with a jerk. He says he walked at his usual gait, "not so very fast or not so very slow." Two or three witnesses for the defendant say they heard some passengers warn plaintiff of the danger of trying to get off, before he reached the platform, but plaintiff says he did not hear it, and one of them,, Mrs. Snodgrass, swears she met him in the aisle and warned him that the car was moving. Plaintiff is dull of hearing, and swears he did not hear the warning, if any was given, and he contradicts Mrs. Snodgrass respecting his location when the car started, and says it did not start until he had started down the steps and was near the bottom step. The jury are the sole judges of the credibility of the witnesses, and they had a right to accept plaintiff's testimony in preference to that of the other witnesses. Mrs. Snodgrass is contradicted, as to plaintiff's location, not only by his own testimony, but also by that of the motorman, who says that, before starting the car, he looked back and did not see plaintiff in the aisle or on the platform; that he saw two or three ladies in the aisle, and could have seen plaintiff if he had been there.

This evidence tends to corroborate plaintiff respecting his location on the steps when the car started. The court could not take the question from the jury on the mere numerical preponderance of witnesses. Harman v. Appalachian Power Co., 77 W. Va. 48, 86 S. E. 917. Mrs. Snodgrass was not a witness at the former trial, and stated, as an excuse for her absence, that she was sick, but on cross-examination admitted she had not been summoned to the first trial. Plain tiff's contention is, as supported by his testimony, that the car did not stop a reasonable length of time to allow him to alight in safety by the exercise of reasonable diligence. He was then between 68 and 69 years of age, incumbered with a suit case, a rain coat, and umbrella, which no doubt tended, in some measure, to impede his progress. He does not attempt to fix the length of time the car had stopped, otherwise than by saying it did not give him time to walk from the front of the car back to the platform and down the steps to the pavement, by the exercise of reasonable diligence. On the other hand, some of defendant's witnesses fix the time of the stop at about two minutes; two of defendant's servants, the conductor and motor-man, so fix the time. Defendant's line crosses the Baltimore & Ohio Railroad tracks immediately beyond the point where the stop was made, and the front of the car was about 10 or 12 feet from the Baltimore and Ohio tracks when it stopped. A rule of the defendant company required the conductor, before allowing his car to pass over the tracks, to go before it and see that the way was clear. He did so on this occasion, and, when he had reached the center of the tracks and saw there was no danger, he signaled the motorman to come forward. He testified that he assisted the passengers to alight and others to board the car, before going forward, and that he observed no one in the act of getting off when he left the car. The car...