Coyle v. B. & O. R. R. Co.

• Decision Date: 10 September 1877
• Citation: 11 W.Va. 94
• Court: West Virginia Supreme Court
• Parties: Coyle v. B. & O. R. R. Co.(Absent, Green, President.)

11 W.Va. 94

Coyle

v. B. & O. R. R. Co.(Absent, Green, President.)

Supreme Court of Appeals of West Virginia.

Decided September 10, 1877.

1. A general demurrer is a plea, and may be filed within the same time that any other plea may be received, where no other plea has been entered.

2. An error not to the prejudice of the party, against whom it is committed, will not in the appellate court be held sufficient to reverse a judgment of an inferior court.

3. If the court below declines to entertain a demurrer, and the declaration is good, the defendant is not prejudiced thereby.

4. Duplicity in a count in a declaration at common law, could only be taken advantage of on special demurrer.

5. Special demurrers are abolished by section 29 of chapter 125, of the Code; consequently mere duplicity in a count in a declaration does not vitiate it.

6. Where the acts of the agent will bind the principal, there his representations, declarations and admissions respecting the subject matter will bind the principal, where made at the same time and constituting a part of the res gestae.

7. There is evidence tending to prove that a colt is killed by an engine on a railroad, and to prove that the servant of the railroad company carelessly and negligently put down the fence, through which the colt escaped from the field on to the railroad track, evidence is offered to show, that a cherry tree was cut at the place where the colt went through the fence, and that it could not have been cut without laying down the fence; and to prove that the agent of the railroad the company cut the tree, and necessarily put down the fence, following declaration of the agent of the railroad company, made at another time and at a different place, and on the farm of another, to-wit: "The section ' boss 7 told him, (the witness), that he had been ordered by the railroad company to cut allthe trees along the line, and that they had cut all the trees from Summit Point down." Held

That the evidence was inadmissible.

8. The employes of a railroad company are bound to use ordinary care and diligence, so as not unnecessarily to injure the property of others on the track.

Supersedeas awarded upon the petition of the defendant below to a judgment of the circuit court of the county of.Jefferson, rendered on the 18th day of November, 1874, in a suit at law then pending in said court, wherein Mattie E. Coyle, was plaintiff, and the Baltimore and Ohio Railroad Company, was defendant.

Hon. John Blair Hoge, Judge of the third judicial circuit, presided at the trial below.

The record does not disclose what Judge presided at the former terms of the court below.

Johnson, Judge, who delivered the opinion of the Court, prepared the following statement of the case:

This is a writ of error to a judgment of the circuit court of Jefferson county, rendered in this case. At rules held in the clerk's office of the circuit court of Jefferson county, on the first Monday in October, 1870, Mattie E. Coyle filed her declaration in this case against the defendant for killing a colt, and laid her damages at $500.00. At the November rules of the same year the common order taken on said declaration was confirmed. At the succeeding term of the circuit court of said county, on the 21st of November, 1870, the defendant appeared and demurred to the declaration, and each count thereof, in which demurrer the plaintiff joined. There were three counts in the declaration; the record does not disclose whether the demurrer was or was not sustained; but from the next order entered at rules in February, 1871, it is presumed it was, as on that day, on motion of the defendant's attorney, the suit was dismissed for the want of an amended declaration. At the October rules, 1871 the plaintiff filed an amended declaration also containing three counts. At the succeeding term, on the 23d day of November, 1871, the defendant by its attorney, moved the court to strike out the amended declaration, because it was the original declaration amended by interlineation and re-filed; which motion the court overruled, but ordered the plaintiff to file among the papers of the case, a copy of the original declaration which was done, and so endorsed by the clerk; to which ruling of the court the defendant excepted, and then demurred to the amended declaration and each count thereof, in which demurrer the plaintiff joined. On the 5th day of December, 1871, the court overruled the demurrer as to the first and second counts of the declaration, and sustained the demurrer as to the third count, and on motion of the plaintiff, leave was given him to file an amended declaration within thirty days, whether in court or at rules, the record does not disclose. At February rules, 1872, the plaintiff filed an amended declaration containing a single count. At the next term of the said court, on the 28th day of April, 1872, upon the calling of the case for trial the defendant announced its readiness for trial; but the plaintiff by her attorney; asked leave of the court to file an amended declaration, and on her motion the cause was remanded to rules, with leave to file an amended declaration, but at her costs; to which the defendant excepted. Nothing more was done in the case until the 31st day of March, 1873, when the plaintiff at rules filed an amended declaration containing three counts. At rules, a rule was given against the defendant to plead; and at May rules a judgment, nil dicit, was had, and a writ of inquiry awarded. Nothing further was done in the case until the 4th day of November, 1874; in court the parties came by their attorneys, and the defendant demurred to the last amended declaration and to each count thereof, which demurrer the court refused to entertain, under the rules of the court; to which refusal the defendant excepted, and thereupon pleaded not guilty and issue was then joined, and the same was submitted to a jury, which found a verdict for the plaintiff, and fixed the damages at $150.00. Thereupon the counsel for the defendant moved the court to set aside the verdict and grant a new trial in the case, which motion the court overruled, and on the 18th of November, 1874, entered judgment on the verdict.

Six several bills of exceptions were taken by the defendant at the trial.

The first, to the ruling of the court in declining to entertain defendant's demurrer to the declaration.

The second bill sets out all the evidence in the case. All that is material to be considered in this case, which omits the defendant's testimony, is as follows:

"The plaintiff, to man tain the issues on her part, introduced Robert W. Baylor a witness in her behalf, who testified that before daylight, on the morning of the 17th day of October, 1869, he heard an engine passing down on the Winchester and Potomac railroad, which was then being run by the Baltimore and Ohio Railroad Company; that the engine was making considerable noise heard its alarm whistle blow long and loud, and thought it w?as on his land, which adjoins the land of Joseph O. Coyle, where the plaintiff's colt was grazed; that from the sound he took it to be an engine and tender; that during the forenoon of that day, in consequence of information he had received, he went to that portion of the track of said railroad which adjoined the land of said Coyle, and there he saw a two year old colt dead with one of its legs broken and nearly off, only hanging by a small piece of skin, and otherwise bruised, and that there were evidences of the colt having been dragged; in going along the track of the road he saw, some fifty yards from where the colt was lying, tracks of two colts or unshodden horses, which tracks came down the bank where the cut for the railroad had been made, and the tracks of one of them returning; that one colt was then in the field of Mr. Coyle; that where the tracks came down the bank the fence was down and had the appearance of having been let down; that a cherry tree had stood against the fence dividing the railroad from the field, and outside of the held, between it and the railroad track; that the fence was a common worm rail fence; that the tree stood close to the lock of the pannels; had the appearance of being recently cut down; and that the tree could not have been cut down without letting down the fence; that the track of the railroad ran between the lands of said Coyle and the lands of W. A. Showalter; that sometime before this, in August or September preceding the injury to the colt, he saw several of the track hands and employes of the Baltimore and Ohio railroad come from Coyle's and Showalter's lands and go on to the land of witness.

"The plaintiff then offered to prove by this witness that said employes commenced cutting trees on the land of witness, to the introduction of which evidence the defendant by its attorney objected; but the plaintiff's counsel claiming that the plaintiff would connect the said cutting with the wrongs alleged in her declaration, the court allowed the same to go to the jury, reserving the right to the defendant to move to exclude the same after all the evidence in the case should be produced.

"The plaintiff then offered to prove by this witness that after he saw them commence cutting trees on his land, he went down where they were and asked them what they were doing, and what authority they had for cutting the timber, and the section "'boss," who had charge of the hands, told him that he had been ordered by the railroad to cut all the trees along the line, and that they had cut all the trees from Summit Point, which was beyond Coyle's land, down; that he ordered them to quit, and they did so and left his land; to the introduction of which evidence the defendant objected, but the plaintiff offering to connect said evidence with the wrongs alleged in her declaration, the court, without" deciding the question, permitted said evidence to go to the jury, reserving the right to the defendant to move to exclude the same...