Core v. Ohio River R. Co.

• Decision Date: 06 December 1893
• Citation: 18 S.E. 596,38 W.Va. 456
• Parties: CORE v. OHIO RIVER R. CO.
• Court: West Virginia Supreme Court

18 S.E. 596

38 W.Va. 456

CORE v. OHIO RIVER R. CO.

Supreme Court of Appeals of West Virginia.

December 6, 1893

Submitted June 10, 1893.

Syllabus by the Court.

1. If the defendant, after the court has overruled its motion to exclude the plaintiff's evidence on the ground of insufficiency, proceeds with its defense, and introduces its evidence, this court will disregard such motion, and will not reverse the judgment, unless it appears that the whole evidence is insufficient to justify the verdict of the jury.

2. Two servants of a common master may occupy a threefold relation towards each other, entirely dependent on the duties imposed upon them by their employment, to wit, that of (1) superior or master, (2) co-ordinate or fellow servant, (3) inferior or servant.

3. Where an engineer, with authority so to do, places an inexperienced and incompetent fireman in charge of an engine the company is liable for unavoidable injuries that result to other employes by such fireman's unskillful management of the engine, for the reason that it is a breach of the duty the company owes to its employes to exercise ordinary care in providing and retaining competent servants.

4. When an action is founded on the incompetency of a fireman temporarily in charge of an engine, the plaintiff must prove (1) that the fireman was so inexperienced in the management of an engine that it was not an exercise of ordinary care to place him in charge thereof, he not being reasonably safe and fit for the employment; (2) that he was guilty of mismanagement of the engine by reason of his inexperience and unskillfulness; (3) that such mismanagement was the proximate cause of the plaintiff's injury.

Error to circuit court, Wood County.

Action for personal injuries by Ellis T. Core against the Ohio River Railroad Company. Plaintiff had judgment, and defendant brings error. Reversed.

Leonard & Archer, for plaintiff in error.

George Loomis, for defendant in error.

DENT J.

Suit was instituted in the circuit court of Wood county by Ellis T. Core, plaintiff, against the Ohio River Railroad Company claiming damages for an injury received while in the employ of the defendant as a brakeman. The defendant appeared, and demurred to the declaration. The demurrer was overruled, and the defendant pleaded not guilty. A trial was had, and a judgment was rendered in favor of plaintiff on the 9th day of January, 1892, for the sum of $1,600. Defendant obtained a writ of error to this court, and now relies on the following assignment of errors, to wit: "First. The court erred in overruling defendant's demurrer to plaintiff's declaration. Second. The court erred in permitting the several questions to be asked, and the answers thereto to be given in evidence to the jury, as set out in defendant's bill of exceptions No. 1. Third. The court erred in overruling defendant's motion to exclude the plaintiff's evidence, and to direct a verdict for the defendant, as set out in bill of exceptions No. 2. Fourth. The court erred in overruling defendant's motion to set aside the verdict for the reasons set out in bill of exceptions No. 3. Fifth. The court erred in overruling defendant's motion to set aside the verdict of the jury upon the groun ds set out in bill of exceptions No. 4. Sixth. The court erred in refusing to instruct the jury as set forth in bill of exceptions No. 5. Seventh. The court erred in refusing to instruct the jury as set forth in bill of exceptions No. 6. Eighth. The court erred in refusing to instruct the jury as set forth in bill of exceptions No 7."

1. The demurrer to the declaration is without foundation, and it requires a considerable stretch of imagination to give its language the construction claimed by the defendant's counsel, as it seems to me to plainly charge that an incompetent fireman was discharging the duties usually devolving on a skillful engineer, and that thereby he had control of the movements of the train at the time of the accident, and that his unskillfulness was the cause thereof. The context shows that there was no pretense nor attempt to charge that he was acting in lieu of the conductor. The demurrer was properly overruled.

2. The following questions and answers were objected to by defendant: "Question. Mr. Core, I wish you would state to the court and jury where Raven Rock is situated, and whether that is a station on this road. Where is it situated as between St. Mary's and Clarington? Answer. There is a station there that is called Raven Rock, situated just a short distance above St. Mary's. I do not know the exact distance. Question. State whether you received any directions from the conductor at Raven Rock to stop the train as you were going towards St. Mary's; and, if so, what the directions were. *** Question. State what instructions, if any, you received at that point from the conductor about stopping the train, or signaling to stop the train. Answer. Well, the conductor gave me orders to signal the train to stop at Raven Rock, so that the engineer could go to his post; and I went out on top of the train, and gave him the signal to stop, and got no answer, and I set some brakes,--three or four brakes,--and still got no answer. I gave him a second signal with my lantern, and got no answer; and I went back to the conductor, and told him I could get no answer from the engine. *** The Court. I will allow you to prove the instructions of the conductor--the man who had charge of this train--to this man. Question. Well, what were they? Answer. Well, he told me to have the train stopped, or to stop the train,--to give them the signal to stop,--which I did. Question. State whether you communicated that fact to the conductor, that you got no response back from the engineer. *** Question. Well, what did he say in that connection about stopping at St. Mary's? The Court. What instructions did he give you about stopping at St. Mary's? Answer. The instructions he gave me about stopping at St. Mary's was to have the train stopped there at the south end of the switch, and back into the switch,--was all the instructions that was given to me about St. Mary's,--to back in and allow the other train to pull up alongside of us, and to pull back on the main track, and let the train going north pass us. That was the only instruction given about St. Mary's." The defendant objects to this evidence, because it shows that the fireman was acting as engineer before the train reached the place of the accident. This evidence was not proper to show any negligence on the part of the conductor or engineer, but it was admissible on the question of competency or incompetency of the fireman to discharge the duties of the engineer. The brakeman certainly had the right to tell what instructions the conductor gave him as to what was to be done at St. Mary's, the place of the accident. And the following question, propounded to the witness T. B. Ayers, was answered by him: "Question. Well, state whether or not it is not usual, when cars come together, that they come along so gently as not to produce a jar. Answer. Yes, sir; there is cars come together that a man on the front end would not feel the jar from the hind end." Defendant objects to the foregoing, because it is an effort to prove a custom, and is expert testimony from one not an expert. I cannot see how this question could effect the issue either way, or how the defendant can be greatly prejudiced by it. Any member of the jury, if he had ever been about a railroad, could have testified the same way, and could have also testified that "there are cars come together that a man on the front end would feel the jar from the hind end." Matters in the knowledge of all men are outside the pale of proof, especially if of everyday occurrence. Where there is perfection in the track and machinery and the men handling it, cars might always be brought together without a jar, but such perfection as this is hardly practicable of attainment in all places and under all circumstances. The question was leading, and the witness was at first led into an answer he did not intend; but he afterwards modified it in such a way as to make his meaning clear. Awkwardly asked, awkwardly answered, and not much harm done.

In the sixth, seventh, and eighth assignments of error defendant complains of the court's refusal to give the following three instructions, to wit: (1) "The jury are further instructed that if they believe from the evidence that the engineer, Charles, Miller, was on the locomotive, and that E C. Hogan, the fireman, was handling the locomotive under the direction of the said Charles Miller, that in such case the locomotive was under the control of the engineer, and the plaintiff cannot recover in this suit, although the jury may believe from the evidence that the engineer was negligent in directing said fireman in the management of said locomotive, and that such negligence caused the plaintiff's injury." (2) "The jury are further instructed, as a matter of law, that, if other things are equal, affirmative testimony is in general entitled to more weight than negative testimony; and if you believe from the evidence that the witnesses Charles Miller and E. C. Hogan are credible witnesses, and you find that they have sworn that they were both on the defendant's locomotive at the time the plaintiff was injured, and that the engineer was in control of said locomotive, then this is what is known as 'affirmative testimony,' and is for that reason entitled to more weight than negative testimony; and if you further believe from the evidence that the witnesses Ellis T. Core, T. B. Ayers, and J. W. Taggart are credible witnesses, and you find that they have sworn that they were also present and giving signals and attempting to...