Carrico v. W. Va. Cent.
| Decision Date | 28 November 1891 |
| Court | West Virginia Supreme Court |
| Parties | Carrico v. W. Va. Cent. & Pa. R'y. Co. |
In his declaration against a corporation for injury as the result of negligence, the plaintiff need not aver that he was not guilty of contributory negligence, that being a matter of defence to be alleged or proved, if it exist, by the defendant.
After the defendant has given in his own evidence, a motion to strike out all the evidence, on the ground that it is insufficient to sustain the issue on the part of the plaintiff, should not be granted.
A motion by the defendant to exclude the plaintiff's evidence, upon the ground that it is not sufficient to warrant a verdict in his favor, will not be granted, if there be any evidence which tends in any degree, however slight, to prove the plaintiffs case. If it tend to prove the plaintiff's case in any degree whatever, the case can not be withdrawn from the jury. The motion can never prevail or be sustained merely because the court may think the weight of evidence is against the plaintiff.
In cases where the common experience of mankind, and the common consensus of prudent persons, have-recognized that to do or omit to do certain acts is prolific of danger, we may call the doing or omission of them "negligenceper.se" or "legal negligence." Theomission of a duty enjoined by law for the protection and safety of the public by a common carrier, or the doing of an act by such a carrier, which, by the common experience and consensus of prudent persons, would create danger to passengers, is legal negligence.
It is legal negligence for a passenger to ride in a fast-going passenger coach, with his arm protruding out of the window, and beyond the line of the body of the car.
It is the absolute duty of a railroad company to keep its track free from dangerous obstructions of every sort, and, when a passenger is injured by reason of any such obstruction along the line of its road, the burden devolves upon it to prove that the accident was the result of the plaintiff s own negligence, or that the most thorough and perfect diligence could not have foreseen and I prevented the injury. Neither can the company relieve itself from liability in regard to the condition and construction of its road by undertaking to confide these duties which it owes to passengers to other hands, no matter what precaution it may have taken in selecting such agencies.
The general rule in regard to contributory negligence is that if the negligence be mutual on the part of plaintiff and defendant there can not be a recovery. But if the injury would have happened just the same, although the plaintiff had been in no wise negligent, his negligence will not prevent his recovery; or if the defendant, after he has discovered the dangerous exposure, refuses or neglects to practice any care or precaution to prevent the injury, he will be held liable.
When a party is confessedly guilty of legal negligence, or when it is so proved by the evidence, the burden devolves upon him to bring himself within some recognized exception to the legal presumption.
As between the company and a trespasser or stranger, contributory negligence on the part of the plaintiff renders the defendant liable only for gross or wanton or willful neglect, where otherwise he would be held liable for ordinary negligence. While this is the general principle, it is necessary to observe that in the transportation of its passengers a railroad company is bound to exercise more than ordinary care and dilligence, and is liable for the slightest negligence against which prudence and foresight could have guarded, and is held to the utmost care in the removal of obstructions, repair of bridges and switches, and all other matters properly pertaining to the condition and safety of its track. Consequently the degree of care exacted from the company for a passenger is greater than that to be exercised in respect to a stranger or trespasser. Hence there are cases where contributory negligence on the part of a stranger or trespasser would entirely defeat a recovery, unless gross or wanton negligence were brought home to the defendant, but, had such person stood in the relation of a passenger, his contributory negligence would relieve the company of the duty to exercise that extreme care ordinarily exacted, but would still leave it liable for the failure to use ordinary precautions for the safety of such passenger after his danger had been discovered, or brought to its notice, if by its use the injury could have been avoided.
To rest the arm upon the window-sill of a car, provided it does not protrude, is not negligence per se; but if it does protrude, the act becomes negligent, in the contemplation of law.
Where an instruction is ambiguous and equivocal, and wTould not readily be comprehended by the average juryman, the court should not refuse to grant it, if by so doing the jury might be misled; but, if it be correct upon one construction of it, the court should properly modify it so as to remove the ambiguity, and make it clearly intelligible to the jury, and, after such modification, grant it; or the court should grant it, with an explanation giving it the meaning which will make it proper.
C. W. Daily and L. D. Strader for plaintiff in error, cited 78 Ya. 645; 89 Md. 329; 56 Pa, St. 294; 7 Allen 207; 12 F. Y. 236; R'y. & Corp. L. Jour. Mch. 15, 1890, p. 214; Id. Nov. 1890, p. 434; 29 Ind, 82; Beach Cont. Neg. 164, 166, 167; Bish. Non. Con. Law § 1207; 2 Wood R'y. Law 1107, 1108; 2 Red. Am. R'y Cas. 552 & n.
A. B. Parsons for defendant in error, cited 8 W. Ya. 568; 25 W. Ya.; 692; 28 W. Ya. 333; 30 W. Ya, 228; Id. 27; 6 W. Ya. 508; 8 W. Ya. 515; 18 W. Ya. 229; Id. 579; 20 W. Ya. 46; 26 W. Ya. 345; Id. 458; Id. 455; 12 W. Ya. 116; 21 W. Ya. 709; 33 W. Ya. 229; 27 W. Ya, 145; 25 W. Ya, 571; 24 W. Ya. 37; 17 W. Ya. 190; 32 W. Ya. 370; 51 111. 333; 2 Am. Rep. 306; 52 Mo. 253; 14 Am. Rep. 418, 423 (n.); 12 S. E. Rep. 699; 19 AY. Ya. 350; Deer. Keg. § 424; 18 111. 418; 64 Barb. 439; 51 Ga. 582; 2 Am. & Eng. R'y. Cas. 70; 5 Am. & Eng. R'y. Cas. 264; 76 X. Y. 594; 102 N. Y. 280; 9 W. Ya, 270; Id. 252; Red. Am. R'y Cas. 255; 74 N C. 655; 51 Miss. 234; 52 Mo. 434; 28 0. St. 340; 37 Cal. 409; 45 Md. 486; 1 Abb. N. Y. App. 432; Boone Corp. §262; 51 111. 333; 82 111. 198; 25 Am. Rep. 308; 70 Ill. 276; 79 Ill. 137; 6 Heisk. 347; 12 Kan. 328; 26 Ind. 76; Beach R'ys 972; 85 Ky. 307; 7 Am. St. Rep. 600; Beach R'ys (Pony Series) § 977; 116 Ill. 254; L. S. R'd Co. v. Brown 123 111.; 15 111. 268; 17 Ill. App. 355; 11 W. Ya. 14.
B. B. Dovener and J. J. Coniff for defendant in error, cited, Aug. Carr. (2d. Ed.) §§ 491, 524; 3 Bro. & Bing. 54; 9 N. E. Rep. 476; 64 Pa, St. 225; 18 N. Y. 408; 15 Gratt. 237, 243; 17 Wis. 503; 51 111. 333; 39 Mo. 468; 21 Pa, St, 203; Whar. Keg. (2d. Ed.) 362; 25 W. Ya, 570; 17 W. Ya. 190; 12 X. Y. 236; 28 W. Ya, 732; 9 W. Ya. 270; 26 W. Ya. 455; 15 Gratt, 230; 108 U. S. 288.
Lucas, President:
This was an action on the case brought by the plaintiff to recover damages for personal injury received on the defendant's railway train in the county of Tucker, on or about the 22d day of July, 1889. The defendant appeared to the action, and demurred to the declaration, and to each count, but the demurrer was overruled. After the evidence was all in, the defendant moved to exclude the whole evidence, which motion was likewise overruled. Defendant asked certain instructions, which were refused, and it also objected to certain instructions which were given at the prayer of the plaintiff, and to such action of the court the defendant reserved exceptions. Finally, after trial and verdict in favor of the plaintiff for the sum of eight thousand, five hundred dollars and costs, the defendant moved the court to set aside the verdict and award a new trial, which motion the court refused, and the defendant again excepted.
The first assignment of error is upon the demurrer to the declaration. The declaration contains three counts, which differ only in the description of the injury sustained, which, as it seems, consisted in crushing the plaintiff's arm in such manner as to render amputation necessary at the socket of the shoulder. In the case of Dun v. Railroad Co., 78 Ya. 645, it seems to have heen held error to overrule a demurrer to a similar declaration, which stated, however, that the injured arm was "resting in the open window of the car, and protruding a slight distance, to wit, the distance of two inches, out of said window." Without criticising the opinion of the court in that case, we may say there was no such defect in the declaration in the case we are now considering. It is wrell settled in this State that the plaintiff need not in his declaration aver that he was not guilty of contributory negligence, that being a matter of defence to be alleged and proved, if it exist, by the defendant. Washington v. Railroad Co., 17 W. Ya. 190; Johnson v. Railroad Co., 25 W. Ya. 571; Sheff v. Buntington, 16 W. Ya. 307; Berns v. Gaston Gas Coal Co., 27 W. Ya, 285, pt. 2 Syll. There was no error, therefore, in overruling the demurrer to the declaration.
The next assignment is that the court erred in not sustaining the motion to exclude the whole evidence. It appears from the record that this motion was submitted after all the evidence had been introduced, both for the plaintiff and defendant, and that it was based, not on any ground of incompetency or variance, "but because insufficient to sustain the issue on the part of plaintiff." We...
To continue reading
Request your trial