Davidson v. Pittsburg, C., C. & St. L. Ry. Co.

• Decision Date: 04 December 1895
• Citation: 23 S.E. 593,41 W.Va. 407
• Parties: DAVIDSON v. PITTSBURG, C., C. & ST. L. RY. CO.
• Court: West Virginia Supreme Court

23 S.E. 593

41 W.Va. 407

DAVIDSON v. PITTSBURG, C., C. & ST. L. RY. CO.

Supreme Court of Appeals of West Virginia.

December 4, 1895

Submitted September 9, 1895

Syllabus by the Court.

1. A declaration containing the necessary averments, so that judgment according to law and the very right of the cause may be given thereon, is sufficient, although not artistically and critically drawn.

2. The circuit court, in its sound discretion, may refuse to give numerous instructions which are to the same legal effect, and only vary as to the position of the words, clauses, and sentences used in their construction. It may also decline to give numerous instructions as to facts virtually taken from the consideration of the jury by other instructions given.

3. When the evidence appearing in the record plainly, clearly, and decidedly preponderates against the verdict of the jury this court will reverse the judgment, set aside the verdict, and grant a new trial.

Error to circuit court, Brooke county.

Action by George Davidson against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

J Dunbar and Palmer & Palmer, for plaintiff in error.

John A Howard and M. D. Post, for defendant in error.

DENT J.

John Davidson, an infant about nine years of age, was permitted by a fireman for the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, on the 23d day of August, 1893, to ride upon a hand car transporting some laborers from the town of Wellsburg, Brooke county, to their place of labor out on the company's line towards the city of Wheeling. An extra morning train ran into the hand car, and the boy was killed. His father, as his administrator, brought suit against the company, and obtained a judgment on the verdict of a jury for $3,500. The defendant now asks a reversal of said judgment for the following assigned errors, to wit: "(1) The circuit court erred in overruling your petitioner's demurrer to said plaintiff's declaration, and to each count thereof. (2) The court erred in the admission of irrelevant, improper, and incompetent evidence given by the plaintiff, and in the refusal to admit proper, competent, and relevant evidence offered by the defendant, as set out in bill of exceptions No. 2. (3) The court erred in giving to the jury the five instructions in behalf of the plaintiff as shown by bill of exceptions No. 3. (4) The court erred in refusing to give to the jury the instructions asked for on behalf of the defendant as shown in bill of exceptions No. 4. (5) The court erred in refusing to submit to the jury the special interrogatories as shown in bill of exceptions No. 5. (6) The court erred in giving to the jury instruction 'A' as shown in bill of exceptions No. 6. (7) The court erred in overruling the motion of the defendant to set aside the verdict of the jury and grant it a new trial in said cause, and in rendering a judgment on said verdict as set out in bill of exceptions No. 7."

As to the first and second counts, the ground alleged for the demurrer is that the declaration sets out that the infant was there alone by invitation from the company, and that there is no act of negligence set out in either of these counts. Attorneys appear to make and rely upon objection without reading the declaration to see what it does contain. If the child was there by invitation of the company, it was its duty to protect it from the negligent acts of its servants as in this case set out,--that they "did then and there carelessly, negligently, unlawfully, and willfully operate, propel, and drive its said hand car" so as to cause his death. Pool v. Railroad Co., 56 Wis. 227, 14 N.W. 46; Prince v. Railroad Co., 64 Tex. 144; Railroad Co. v. Gray, 27 Am. & Eng. R. Cas. 318. The same may be said as to the third count. After alleging that the child was there by invitation and permission of the defendant, and was entitled to notice of approaching trains, it sets out by positive averment that the defendant did then and there "carelessly, negligently, and improperly wholly fail" to give such notice, by reason whereof the said hand car was run against, into, upon, with great force and violence, by the said engine and cars, and that the carelessness, negligence, and wrongful conduct and default of the said defendant caused the death of the said child. There is no question of the sufficiency of the allegations. But the objection that the defendant appears to rely on is that the declaration fails to allege that the death was caused by the negligence of the servants of the defendant in charge of the train. This is a question that would more properly arise on a motion to exclude the evidence or to instruct the jury. The third count contains a general allegation of negligence on the part of the defendant, and then sets out the violent running of the engine and train against the hand car, and follows up with the allegation that by reason of the negligence last aforesaid, which necessarily refers to the running of the train against the hand car, the death was caused. While the count might have been placed beyond possible objection by using the word "negligently" before the words "run against," yet, according to the rule laid down in the case of Poling v. Railroad Co., 38 W.Va. 650, 18 S.E. 782, it is sufficient so that judgment according to law and the very right of the cause may be given.

As to the second ground of error, the whole evidence is set out in bill of exceptions No. 2, and the defendant insists that it is the duty of the court to examine the whole evidence, and ascertain whether there was any irrelevant or incompetent testimony admitted or rejected. On a careful examination there appears to have been none that could have to the slightest extent entered into or affected the case, but the evidence admitted appears to have been proper, and that not admitted properly rejected. Many such objections are entirely too trivial to deserve a moment's consideration, and only serve as clogs to the wheels of justice.

The following are the five instructions given for the plaintiff and instruction "A" given by the court:

Plaintiff's instruction No. 1: "The court instructs the jury that, according to the law of West Virginia, it is the duty of the engineer and fireman on an engine to keep a constant lookout ahead for children that may be trespassing on the railroad track, so as to avoid injury to them, if possible; and, if they neglect to do so the railroad company employing them is liable for any injury caused by their negligence." Given.

Plaintiff's instruction No. 2: "The court instructs the jury that, even if the plaintiff's decedent, John Davidson, was in the position of a trespasser on the defendant's property, yet it was the duty of the defendant to exercise ordinary care to avoid injury to him; therefore, if the jury believe from all the evidence that said John Davidson could have been seen by the engineer or fireman on the engine mentioned in evidence by the exercise of ordinary care in time to stop the engine and avert the accident, it was their duty to do so, and, if they neglected to keep a constant lookout ahead, and thereby failed to see him in time to stop, the defendant railway company is liable, and the jury should find for the plaintiff." Given.

Plaintiff's instruction No. 3: "The court instructs the jury that, even if the plaintiff's decedent, John Davidson, was in the position of a trespasser on the defendant's property, it was the defendant's duty to exercise ordinary care to avoid injury to him. Therefore, if the jury believe from all the evidence in this case that the engineer or fireman on the engine mentioned in the evidence did see the hand car mentioned in evidence, on which the said John Davidson was riding, in time to stop the engine and avert the accident, it was their duty to stop the engine as soon as possible, and if they could have stopped in time to avoid injury to him by the exercise of ordinary care, and neglected to do so, the defendant is liable, and the jury should find for the plaintiff." Given.

Plaintiff's instruction No. 4: "The court instructs the jury that if they believe from the evidence in this case that the plaintiff permitted his decedent, John Davidson, a boy about 9 years of age, to go from his home at Wellsburg after or to get elderberries, but did not know that he was going to ride on a hand car, he, the plaintiff, is not, by reason of such permission, guilty of contributory negligence, and the defendant cannot be relieved from liability solely because the plaintiff thus permitted his said son to go from home." Given.

Plaintiff's instruction No. 5: "The court instructs the jury that in this case, if they find for the plaintiff, they will assess his damages at such sum as they may deem just and right so as not to exceed ten thousand dollars." Given.

Instruction A: "The court instructs the jury that, if they believe from the evidence that the plaintiff's decedent, John Davidson, was killed while riding on defendant's hand car, and that the defendant was not accustomed to carry passengers on its hand car, and had not authorized its servants who were in charge of the hand car in which said decedent was so riding to carry passengers thereon, they will find a verdict for the defendant, unless they further find that the engineer and fireman in charge of the extra passenger train mentioned in the evidence failed to use ordinary care to avoid such killing, even though they also find that said decedent was riding on said hand car by permission of the servants in charge thereof."

The following are the 16 instructions asked by the defendant, but refused, and the 4 given.

Instruction No. 1: "The jury are instructed...