Cain v. Kanawha Traction & Electric Co.
| Decision Date | 12 February 1918 |
| Docket Number | 3408. |
| Citation | 95 S.E. 88,81 W.Va. 631 |
| Parties | CAIN v. KANAWHA TRACTION & ELECTRIC CO. |
| Court | West Virginia Supreme Court |
Submitted February 6, 1918.
Syllabus by the Court.
In an action for personal injuries the declaration charged that defendant, while plaintiff, a passenger, was in the act of alighting and without warning him "carelessly and negligently and suddenly" started its car whereby and with great force and violently he was thrown upon the pavement and injured. The evidence tended to prove that plaintiff was not given a reasonable time to alight, and that the conductor of the car in disregard of his duty signaled the motorman to go ahead, while plaintiff was in the act of leaving the platform. There was no variance.
Street railway companies in the operation of their cars are charged with the highest degree of care in receiving and discharging passengers, and it is no defense that the conductor in charge of a car does not see a passenger in the act of alighting or getting on before signaling the motorman to go ahead. It is his bounden duty to see or know that passengers have reached places of safety before starting the car.
The fact that the rules of the railway company require conductors before crossing the tracks of a steam railroad to go forward and onto the tracks of the other railroad and look out for approaching cars or locomotives thereon before signaling the motorman to go ahead will not excuse conductors from first discharging their duty to passengers alighting or getting on the car, and his negligent performance of any of the duties so imposed upon him will render the railway company liable to a passenger injured thereby.
When in such an action the nature and extent of the injuries sustained and whether temporary or permanent is left in doubt by the evidence, and the verdict is large, and possibly excessive, and it appears that the jury may have been misled by too broad an instruction given for plaintiff, the judgment of the trial court setting aside the verdict and awarding the defendant a new trial will not be reversed on writ of error.
Error to Circuit Court, Wood County.
Action by Charles S. Cain against the Kanawha Traction & Electric Company. Judgment for plaintiff, and from the award of a new trial, he brings error. Affirmed.
Reese Blizzard, R. E. Bills, C. N. Matheny, and C. M. Hanna, all of Parkersburg, for plaintiff in error.
J. W Vandervort and Van Winkle & Ambler, all of Parkersburg, for defendant in error.
A writ of error to the judgment of the circuit court setting aside the verdict of the jury in favor of plaintiff for $5,558.33 for damages for personal injuries alleged to have been sustained by him while a passenger on defendant's car and awarding the defendant a new trial.
It does not distinctly appear from the record upon what ground the court ruled the defendant entitled to a new trial, but those assigned for defendant's motion were (1) Because the verdict was contrary to the law and evidence; (2) because excessive; (3) because of erroneous and improper instructions given; (4) because proper instructions proposed by defendant were refused; (5) because of erroneous instructions given at the instance of plaintiff, and (6) because of the admission and rejection of evidence.
According to the elaborate briefs and oral arguments of counsel the only error relied on by plaintiff for reversal is the action of the circuit court in setting aside the verdict and adjudging the defendant a new trial. The general rules governing trial courts and this court on writ of error are set forth in the briefs of opposing counsel with copious citation of and quotations from prior decisions pronounced here and in the decisions of other courts and from text writers, but these rules are so well and generally understood and have been so many times iterated and reiterated that we deem it unnecessary to do more than regard them in disposing of the case.
The cause or causes of action alleged in the two counts of the declaration are substantially as follows: That when plaintiff had reached his destination, and the conductor had announced the station, Williamstown and Baltimore and Ohio depot, and after the car had been brought to a stop and plaintiff with due care and without fault on his part had started to and had reached the rear end of the car and was on the point of stepping from the platform thereof to the pavement, and while his body was still upon the car, the defendant carelessly, and negligently, and suddenly and without warning to him, started said car, whereby he was thrown with great force and violently upon said pavement and sustained the injuries of which he complains.
Cross errors are assigned by defendant, but the sufficiency of the declaration, the demurrer to which was overruled by the trial court, is not one of them. The first and principal point made in support of the judgment is that the defendant's alleged negligence consisted in suddenly and violently starting the car, whereas the evidence showed that the car was started gently up grade, and that plaintiff got off the car while it was in motion, precluding recovery; and that during the trial, plaintiff changed his theory of negligence from that of the sudden starting of the car to want of reasonable time given to alight at destination and want of warning, showing a variance between allegata and probata, precluding recovery.
We observe that the allegation is not that the car was suddenly and violently started, but that it was "carelessly and negligently and suddenly" started and without "warning to him." True it is alleged that plaintiff was thereby thrown with great force violently to and upon the pavement, but this characterized the result to plaintiff and not the manner of starting the car. We observe again that the allegation is that defendant in disregard of its duty, carelessly and negligently and suddenly started the car whereby plaintiff as he was on the point of stepping from the platform was with great force and violently thrown upon the pavement and injured. It has been frequently decided here, in actions of this character, that there is no variance in respect to specification of mere matters of detail, concerning the manner or instrumentalities by which the injury is inflicted, if the substantial elements of negligence be proven. Kennedy v. C. & O. Ry. Co., 68 W.Va. 589, 592, 70 S.E. 359, and cases cited.
If on the trial the evidence was sufficient to establish the fact that plaintiff was not under all the circumstances allowed a reasonable time to alight, or the defendant was otherwise negligent in not observing him in his perilous condition and protecting him, and he was without fault, as to which, on account of the new trial awarded, we express no opinion, would not such evidence support without variance the charge of carelessly, negligently and suddenly starting the car and doing plaintiff the injuries as charged? We think it would.
Plaintiff relied on two theories of liability, first, negligence of the defendant in not giving him reasonable time to leave the car in safety, second, negligence in not observing him on the platform or steps in his perilous condition before giving the signal to go ahead. It is well settled by our decisions and everywhere, that it is actionable negligence on the part of any carrier of passengers not to stop its cars for a sufficient time to allow passengers to alight and get aboard with safety at stopping places. Normile v Wheeling Traction Co., 57 W.Va. 132, 49 S.E. 1030, 68 L.R.A. 901; Duty v. C. & O. Ry. Co., 70 W.Va. 14, 73 S.E. 331; Guerin v. Railroad Co., 72 W.Va. 725, 79 S.E. 739; Hoylman v. K. & M. Ry. Co., 65 W.Va. 264, 64 S.E. 536, 22 L.R.A. (N. S.) 741, 17 Ann.Cas. 1149; 1 Nellis on Street Railways (2d Ed.) section 305, and cases cited. Whether the stop was reasonable, plaintiff who was his only witness on this question swore that he was seated in the front end of the car and that when the car stopped he arose from his seat, gathered up his umbrella, rain coat and suit case and started back to the rear end platform where passengers were discharged, and taken on, that not many got off and but two or three got on, that he was seated farther away from this platform than most of the passengers on the car, that he did not delay, but that as he was leaving the platform, a couple of ladies near the bottom of the steps were coming on, and that he stepped back to let them pass him and they went...
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