Cicerello v. C. & 0. Railway Co.

• Decision Date: 30 March 1909
• Citation: 65 W.Va. 439
• Court: West Virginia Supreme Court
• Parties: Cicerello v. C. & 0. Railway Co.

65 W.Va. 439

Cicerello

v.C. & 0. Railway Co.

Supreme Court of Appeals of West Virginia.

Submitted February 2, 1909.

Decided March 30, 1909.

1. Appeal and Error Discretion of Lower Court Continuance.

Refusal to continue a case called for trial because of the absence of leading counsel, detained by an engagement in another court, where other competent counsel of record are present, will not be good cause for reversal, (p. 441.)

2. Same.

Refusal to continue a cause because of the absence of a material witness, not shown to have been served with process, and where proper diligence is not shown to have been used to secure the presence of the witness, will not be good cause for reversal, (p. 441.)

3. Executors and Administrators Appointment Collateral Attack.

The appointment of a non-resident, administrator, by a county court, though voidable, is not void in this State, and can not be questioned collaterally; and a special plea tendered, setting up such appointment as a defence, or for the purpose of defeating an action brought by such representative, is properly rejected, (p. 444.)

4.. Railroad Injuries to Persons on or Near Track Employes of Independent Contractor.

While it is the duty of employes of an independent contractor employed on or along a railroad, to use reasonable care for their safety, yet as between them and the railroad company this duty is reciprocal, and in such cases, the law does not require of such employes at work on or along the tracks to maintain a constant lookout for approaching trains and at the same time pursue their labors, but does require of the operatives of trains an active vigilance, and to give reasonable danger signals to attract the attention of the persons so employed, to avoid doing injury to them, and to enable them to get out of the way of moving trains. Instructions to the jury to the contrary were rightfully rejected, (p. 445.)

Error to Circuit Court, Putnam County.

Action by Bruno Cicerello, administrator of the estate of Frank Olvino, deceased, against the Chesapeake & Ohio Eailway Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Ferguson & Ellison, Null & Higgins, and C. J. Van

Fleet, for defendant in error.

Simms, Enslovv, Fitzpatrick & Baker, for plaintiff in error.

Miller, President.

The plaintiff, as personal representative of Frank Olvino, deceased, seeks recovery-of damages from defendant, for negligently causing the death of decedent on February 8, 1907, while employed by Einehart & Dennis, independent contractors, near Scott station, in Putnam county, in excavating and widening a hill side cut for another track along defendant's main line. 01-vino's duty, as alleged, was to keep defendant's main track cleared of the dirt and rock which fell from the steam shovel employed in making the excavation. The negligence charged is, that defendant's servants and employes so carelessly and negligently, and with such great force and violence drove and struck against the said Frank Olvino, a certain locomotive with cars attached, thereby inflicting upon him such severe and fatal wounds and injuries, that he then and there died.

On the trial there was a verdict and judgment for plaintiff for $1,500.00, and for errors alleged to have been committed preliminary to and during the progress of the trial, and for refusal of the court below to set aside the verdict and award defendant a new trial, the defendant seeks a reversal of the judgment below.

Of the preliminary rulings complained of, the first is, that the court refused to continue the case on motion of defendant, when called for trial, because of the absence of F. B. Enslow, defend-ant's leading counsel; and because of the absence of J. B. Thomas, one of its witnesses; and the second is, the rejection of defendant's special plea number two tendered. The motion to continue was supported by the affidavits of said Enslow and R. M. Baker, another attorney for the defendant. Baker was also cross-examined on the matter of his affidavit, and the clerk of the court was also examined in relation to the issuance of subpoenas for the. witnesses, and the want of service and return thereof. This evidence shows that Enslow was necessarily absent in attendance upon the United States Circuit Court of Appeals at Richmond, oh the clay this case was set for trial, but that Baker, who assisted in the conduct of the trial on behalf of the defendant, was present. The record of the trial shows that Enslow was a member of the well known firm of Simms & Enslow, or Simms, Enslow, Fitzpatrick and Baker, that defendant's special plea number two was signed by Alexander & Barnhart and R. M. Baker, attorneys, and not by either of the other firms of which Enslow was a member, and that Mr. Alexander was also present and assisted in the trial, and that the defense was conducted with skill and ability. In the case of Rossett v. Gardner, 3 W. Ya. 531, relied upon, upon the question of the absence of counsel, it was shown that appellant had used due diligence to be prepared for trial; that one of his counsel was unavoidably absent, and that the other, though present on a preceding day, was for some cause, not explained in the record, absent when the cause was heard, and the appellant was left without the aid of any counsel. In the present case defendant had able counsel present to conduct the trial. In the case of Myers and Axtell, Receivers v. Trice, 86 Ya. 835-841-2, the absence of leading counsel on account of sickness, in connection with the absence of an important witness, not summoned by reason of mistake in name, was held good cause for continuance, and denial of the continuance was, on writ of error, held sufficient cause for a reversal of the judgment. Several cases are cited by the Virginia court in support of its ruling, two from Georgia, one United States Circuit Court decision, and the case of Rhode Island v. Massachusetts, 11 Peters 226. In the latter case, says the Virginia court, a continuance was granted by the Supreme Court of the United States upon the ground that the leading attorney for the state of Rhode Island was ill, although the attorney general of that state was present. The case was of exceptional importance says the court, and that the inference was that the court was influenced more by the deep concern and the high importance of the case than by any purpose to exemplify the rule in such cases. "In all such cases, however," says the Virginia court, "the application should be watched with jealousy, and the discretionary power of the court exercised with caution; but, if there is no sufficient reason to induce the belief that the alleged ground of the motion is feigned, a continuance should be granted, rather than to seriously imperil the just determination of the cause by refusing it." This court further says: "Under the peculiar circumstances of the present case, and especially in view of the very harsh ruling on the preceding motion, we are clearly of opinion that the circuit court erred in refusing to continue the case on the ground of the absence of the leading counsel of the defendants, by reason of sickness."

With respect to the absence of the witness Thomas, the evidence shows that he was or had been in the employ of the defendant company, was in fact the fireman on the engine at the time of the killing of 01 vino; that a subpoena for him and another witness was secured from the clerk only six clays before the case was called for trial and sent to the Compaq's counsel at Huntington; that no return of service thereof on Thomas was made, and the testimony of Baker, counsel for defendant on cross-examination, shows that he sent the subpoena for Thomas to the company's superintendent requesting him to secure the presence of Thomas, who, he was told, was at Hinton, and gave directions that an order be given him on the ticket agent there for transportation. He did not know whether Thomas had been served or provided with transportation. We do not think the record shows due diligence on the part of defendant to secure the presence of Thomas. Besides he was only one of the numerous witnesses present at the time of the killing of the deceased, including the engineer, and who were present and examined as witnesses on the trial and gave testimony. Motions for continuance are generally addressed to the sound discretion of the trial court. The judgment of the court thereon not being reviewable on writ of error and appeal unless there has been manifest abuse of such discretion. Mullinax v. Waybright, 33 W. Va. 84; Ealstead v. Horion, 38 W. Va. 727; State v. Lane, 44 W. Va. 730. It was not shown what was proposed to be proven by the witness. Where the motion to continue is based on the absence of a witness it must be shown that proper diligence to secure his presence has been used, and if there is any ground to suspect that the continuance is for delay, it must appear what evidence the absent witness is expected to give. State v. Brown, 62 W. Va. 546. In Tompkins v. Burgess, 2 W. Va. 187, and Dimmey v. Wheeling, etc. R. Co., 27 W. Va. 33, it is said that on such motion it must be shown that the same facts cannot be proved by any other witness in attendance and that the party whose witness is absent cannot proceed in the absence of such witness. The affidavit of Baker is that the witness is material and that defendant cannot prove the same facts by any one else, as he is informed; but on cross examination it is shown that he does not know what Thomas will swear, except from his report. It is not shown what this report was. It is suggested in brief of counsel, however, that as Thomas was fireman on the engine that killed deceased, he would be a material witness, he and the engineer being the only two persons on the engine, and that each seeing what occurred from different points of view, this rendered Thomas a most important witness. But other witnesses were present and gave testimony as to what was seen and heard by...