Chesapeake & O. Ry. Co v. Sparrow's Adm'r

• Decision Date: 22 November 1900
• Citation: 98 Va. 630,37 S.E. 302
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. SPARROW'S ADM'R.

98 Va. 630

37 S.E. 302

CHESAPEAKE & O. RY. CO.

v.SPARROW'S ADM'R.

Supreme Court of Appeals of Virginia.

Nov. 22, 1900.

BILL OF EXCEPTIONS—DEMURRER TO EVIDENCE—MASTER AND SERVANT —OBVIOUS DEFECTS.

1. On a demurrer to the evidence, the statement of the evidence becomes part of the record, and the ruling of the court thereon is reviewable, without incorporating the evidence in a bill of exceptions, though both parties do not sign the statement, and it is not authenticated by the certificate of the judge as the evidence; the judgment reciting that, "the demurrer to the evidence being argued, it seems to the court, " etc., and the opposing counsel joining in the demurrer without objecting that the evidence considered was not the evidence embraced in the statement.

2. Projecting causeways on opposite banks of a river were connected by a boat at low water making a bridge, and at high water the boat was used as a ferry, being operated by a cable to which it was attached by a rope fastened to a ring at the gunwale, and which slipped on the cable by means of a pulley. When the water rose it was the duty of the ferryman to let the boat drop away from the causeways, and float to the bank, where it was moored. The ferryman, an employe of defendant, was drowned, presumably while attempting to loosen the boat from the causeways on a stormy night. The rope connecting the boat and cable was found broken, apparently from the strain placed upon it when the boat was swung into the stream. Shortly before deceased had applied to defendant for a new' rope, without stating the purpose or the immediate necessity for it. There was evidence that the rope was in a condition to make it dangerous to use it in high water, and that it would have been imprudent or rash in a man like deceased, in the boat, to rely on the rope to get the boat behind the causeway, in case of high water. The only defect was that the rope was frayed by rubbing on the side of the boat. Held, that conceding that defendant was negligent in not providing a new rope on request, deceased was contribu torily negligent the defect being open and obvious to him, and he being in a better position to know its condition, and the danger to which he exposed himself in getting into the boat under the circumstances, than his employer.

Appeal from circuit* court. Nelson county.

Action by James Sparrow's administrator against the Chesapeake & Ohio Railway Company. Prom a judgment for plaintiff, defendant appeals. Reversed.

Caskle & Coleman and B. T. Gordon, for appellant.

Harrison & Long, for appellee.

OARDWELL, J. This action was brought by James Sparrow's administrator against the Chesapeake & Ohio Railway Company for the recovery of damage by reason of the death of his intestate, which, it is alleged, was caused by the negligence of the defendant company.

At the trial, after the evidence on both sides was closed, the defendant demurred to the evidence, and the plaintiff joined in the demurrer. The amount of damages was thereupon inquired of by the jury, which found a verdict for the plaintiff, and assessed his damages at $2,000, subject to the opinion of the court on the demurrer to the evidence. The court overruled the demurrer, and gave judgment in favor of the plaintiff for the amount of damages ascertained by the jury. To this judgment a writ of error and supersedeas was awarded by one of the judges of this court.

The defendant in error moves the court to dismiss the writ of error or affirm the judgment complained of as presumptively right, upon the ground that there is no bill of exceptions, and that the evidence which was adduced upon the trial in the court below has never been made a part of the record, and therefore cannot be considered by this court on review.

The object of a bill of exceptions is to bring into the record something that otherwise would not be part of the record, and it always relates to some ruling of the court thereon. The ruling of the court objected to was its judgment on the demurrer to the evidence in the cause.

It is recognized by decisions of this court, and generally accepted by the practitioner in the courts of the state as a correct distinction, that a demurrer to evidence and a bill of exceptions are wholly distinct and independent modes of proceeding.

Judge John Marshall, representing the plaintiff in error, in Wroe v. Washington, 1 Wash. 357, distinguished them as follows: "I would ask if it be possible to liken a bill of exceptions to a demurrer to evidence. They are different in form, in their consequences, and in the conduct of the parties. In the former, the parties still proceed to a trial of the issue; in the latter, the jury are discharged immediately or find a conditional verdict only. In the former, the question is brought before the court upon the motion of the ob-jecting party only; In the latter, by the act of both parties, since the demurrer offered by the one is joined by the other. In the former, either party has the right to the benefit of his exceptions before a superior court; in the latter, the court, if the case be clear, may refuse to compel the other to join in the demurrer, and leave the whole question to the jury. The judgment upon reversal in the one case is for a new trial, in the other it is final and conclusive."

In the opinion of the court in that case, by Pendleton, P., it was said: "In the case of Keel v. Herbert, 1 Wash. 203, this court decided against the doctrine of taking a bill of exception for a demurrer to evidence; but the counsel endeavored to distinguish that case from this, on account of the whole evidence being stated in this, whereas in that there was a partial recital of the evidence, and says that the reason which governed the court in that case was founded upon that distinction. Whether this was the only reason assigned by the court I cannot ascertain, not having my notes with me; but the judges recollect that their distinction went further, and that they considered the two modes as being so totally dissimilar that the one could not be considered as answering the purposes of the other."

In discussing the office of a demurrer to evidence, the learned author of 1 Rob. Prac. (Old Ed.) p. 351, says that, to avoid inconvenience, the modern practice is (especially in Virginia, where it has been sanctioned by repeated decisions of the court of appeals) to put all the evidence on both sides in the demurrer, and then to consider the demurrer as if the demandant had admitted all that could reasonably be inferred by a jury from the evidence given by the other party, and waived all the evidence on his part which contradicted that offered by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it With these limitations, the party whose evidence is demurred to has all the benefits which the ancient practice was intended to give him, without subjecting the other party to its inconveniences, and no disputed fact is taken from the Jury and referred to the court

In other words, the modern practice requires the demurrant to tender with and as a part of his demurrer to evidence a statement of all the evidence on both sides, in order to save the demurree the inconvenience of delay, and in taking a bill of exceptions to the refusal of the court to have made a part of the demurrer omitted evidence which he deems essential to a correct decision on the demurrer. This latter course he may pursue or refuse to join In the demurrer, and, if he is compelled to join in the demurrer, this ruling of the court comes under review in the appellate court under an assignment of error to the judgment of the trial court upon the demurrer to the evidence.

Among the cases cited in 1 Rob. Prac., supra is Norvell v. Camm, 2 Rand. 68, and In the statement of that case it is said: "The demandants' counsel tendered to the court a demurrer to the evidence, alleging that it contained all the evidence which had been given on both sides [then followed a statement of the evidence], and that the tenants refused to join in the demurrer, and the court refused to compel them." The ground upon which the tenants refused to join in the demurrer was that the demurrer tendered by demandants did not contain all of their evidence, and this court held that the circuit court should have compelled the tenants to join in the demurrer to the evidence tendered by the demandants, stating the evidence of James London, in the particular in which the counsel of the parties differed, as the counsel of the tenants insisted It was.

In Mandeyille v. Perry, 6 Call, 78, Tucker, J., defined a demurrer to evidence as a part of the record in an action at law; and the definition there given by him, as to what constitutes the record in an action at law, is quoted with approval in White v. Toncray, 9 Leigh, 351, and in Improvement Co. v. Karn, 80 Va. 589.

We have been unable to find a case, decided by this court or any other, in which it was held that it is necessary to take a bill of exceptions to the ruling of the trial court upon a demurrer to evidence, in order to have it reviewed by the appellate court, or to bring up the evidence in the case as a part of the record, or that it is necessary to have the trial judge to authenticate the evidence considered by him upon the demurrer to the evidence.

It seems clear that the universal practice in this state has been, from the decision in Wroe v. Washington, supra, to the present time, for the party demurring to evidence to tender to the court, with and as a part of his demurrer, a statement of all the evidence in the case on both sides, as was done in the case in judgment; and if the other party joins in the demurrer, or is required by the court to do so over his objection, the evidence comes up to this court upon a writ of error, to be reviewed as an inseparable part of the demurrer, which is made a part of the record by the judgment of the trial court...