Dimmey Adm'r v. Wheeling

• Decision Date: 21 November 1885
• Court: West Virginia Supreme Court
• Parties: Dimmey Adm'r v. Wheeling & E. G. Railroad Co.

27 W.Va. 32

Dimmey Adm'r

v.Wheeling & E. G. Railroad Co.

Supreme Court of Appeals of West Virginia.

Submitted September 14, 1885.

Decided November 21, 1885.

Where a married woman is killed by the negligence of a corporation, her administrator may under sec. 6, chap. 108 of the Code maintain an action for causing such death, (p. 34.)

If a declaration shows on its face, that the plaintiff's negligence contributed directly to and in part caused the injury complained of, it will be held bad on demurrer, (p. 46.)

To entitle a party to a continuance on the ground of the absence of a witness it must be shown, that the party lias used due diligence to procure the attendance of the Witness; thai he is material; that the same facts can not be proved by any other witness in attendance; and that the party making the application can not safely go to trial in the absence of such witness, (p, 4

Where the question is involved whether the plaintiff's intestate by jumping from a car drawn by horses, which were running away, was not guilty of contributory negligence and it appeared that there was an embankment near the place of tfre accident, over which the car might have been thrown, it was proper to ask a witness: "How steep is that embankment?" (p 49.)

Where death is caused to a passenger by the horses attached to a horse-car "running away," it was proper to prove facts tending to show, that the driver was incompetent, (p. 50.)

Where the husband as administrator of his deceased wife brought an action to recover damagesof a street railroad company for causing her death, and he was on the trial examined as a witness on his own behalf, it was improper on cross-examination to ask him: "Are you not engaged to be married again?" (p. 50.)

If a party upon a trial before a jury objects to the giving of instructions, and after his objections are overruled, and the instructions are given, he does not except to the giving of the instructions, he will in the Appellate Court be deemed to have waived his objections, (p. 51.)

To escape the responsibility of contributory negligence the plaintiff is not required to exercise more care than is usual under similar circumstances among careful persons of the class to which he belongs, (p. 53.)

9. It is not a surprise of the character, which would be ground for a

new trial, that a witness swears to a conversation had with the defendant, (p. 54.)

10. A ease in which the court properly refused to set aside a verdict for $5,000.00 in an action against a corporation for killing a person, (p. 57.)

Caldwell $ Caldwell and Russell $ Stifel tor plaintiff in error W. P. Hubbard and L. S. Jordan for defendant in error. Johnson, President:

This is an action on the case brought in August, 1882, in the circuit court of Ohio county. The plaintiff is the administrator of his deceased wife, Mary T. Dimmey. The action was brought under the statute which authorizes an action against anyperson or corporation for the killing of a person. The declaration has three counts, in each of which it is alleged, that through the negligence of the defendant, which was at the time a street railroad company with its cars drawn by horses, the plaintiff's intestate was thrown from one of the cars of defendant and killed. The defendant by counsel demurred to the declaration and each count thereof, which demurrer was overruled, and the defendant pleaded not guilty. On October 9, 1884, the defendant by counsel moved to continue the case on the ground ot the absence of a material witness; and in support ot said motion filed the affidavit of E. J. Ritter, the secretary of the defendant, and the plaintiff filed the counter affidavit of A. C. Bewley. The court overruled the motion to continue; and the case was tried by a jury on the issue. On October 11, 1884, on motion of defendant the court directed the jury in addition to their general verdict to find in writing upon the following particular questions of fact:

"First. Was not the accident to Mrs. Dimmey directly and immediately caused by her jumping from the car?

"Second. It Mrs. Dimmey had remained in the car, would she have escaped injury?

"Third. Did she not leave the car under circumstances, under which a person of ordinary and reasonable prudence would have remained in the car?

"Fourth. Did not Mrs. Dimmey jump from the car?

"Sixth. Did not Mrs. Dimmey through fright or excitement jump from the ear under circumstances, under which a reasonable, prudent and careful person of the same class would have remained in the car?

"Seventh. If the driver was off the car at the time of the accident to Mrs. Dimmey, did he voluntarily jump trom the car, or was he thrown or did he fall from it?

"Eighth. Tf the driver jumped or was thrown or tell from the car prior to the accident to Mrs. Dimmey, did he endeavor to get on the car again before the accidenl?"

To the asking of these questions the plaintiff objected.

The jury rendered the following verdict:

"To No. 1, no evidence. To No. 2, yes. To No. 3, no. To No. 4, no evidence. To No. 6, no. To No. 7, he jumped. To No. 8, no. We the jury find for the plaintiff and assess the damages at $5,000.00."

A motion was made by defendant to set aside the verdict and grant it a new trial, which motion was overruled, and judgment on January 12, 1885, was entered on the verdict with interest from the date of the judgment. The court certified all the evidence in the case, including the affidavits of Joseph Kleeh, E. J. Ritter and George Hess as a foundation for the motion made to set aside the verdict on account of misconduct of a juror, with the counter-affidavits of Henry Neuhardt and William Purcell; also the exceptions to the admission and rejection of evidence, and to the giving of the instructions tor plaintiff, and refusing the ninth, tenth and eleventh*proffered tor the defendant, also to the refusing to exclude the plaintiff's evidence, and to refusing to set aside the verdict and grant a new trial.

To the judgment the defendant obtained a writ ot error and supersedeas.

The first error assigned is, that the court overruled the demurrer to the declaration. It is insisted that the husband as administrator of his deceased wife, who brings this action, can not maintain the same; and to sustain the proposition the following authorities are cited; Laughlin v. Eaton, 54 Me. 156; Schoulder's Dom. Rel. 170; Cooley on Torts, 117; Southworth v. Packard, 7 Mass. 95; Ballard v. Russell, 33 Me. 196; Dandr'ulgc v. Minge, 4 Rand. 403; Capertonv. Greg- ory, 11 Gratt. 505; Harrison v. Gibson, 23 Graft, 312; City v. Trowbridge, 5 W. Va. 353; Hofton v.Daily, 106 111.131;

Lynch v." Daxis, 12 How. Pr. 323.

In Laughlin v. Eaton, 54 Me. it was held, that the well established doctrine of the common law, that a married woman can not sue alone tor malicious prosecution, has not been changed by the Maine statute. Burrows, judge, said: u The well known doctrine of the common law is, that, where a wrong is committed against the person ot the wife during coverture, as by beating her, slandering her reputation or by malicious prosecution, she can not sue alone. For injuries to the wife occasioning to the husband a deprivation ot the society of his wile or of her assistance in his domestic affairs, or by which he is put to expense, he may have his separate action, as where a violent battery has caused a long continued illness of the wife, or expense in her case, or if she be maliciously indicted, and thereby separated from him, or he be put to expense in her defence. But if the action is brought for her personal suffering and injury, the husband and wife must join, and care should be taken not to include in the declaration a statement of any cause of action, for which the husband alone would be entitled to recover."

In Southworth v. Packard, 7 Mass. it was held, that a release of damages by the husband for the personal abuse ot his wife is a good bar to a joint action by husband and wife tor the same cause.

In Dandridge \. Minge, 4 Rand, it was held, that, where the rights of the wife appear clearly in the record, it is the duty of the court ex officio to protect her against any injurious effects arising from the acts or admissions of her husband, whether the point was made in the pleadings or not; that a bill by husband and wife is the husband's suit only, and the wife is joined for conformity, to be bound only so far as in justice she ought to be bound.

In Harrison v, Gibson, 23 Gratt. it was held, that a bill by husband and wife in right of the wife is the bill of the husband, and the wife is onl} joined for conformity. The coverture of the wife is therefore no excuse for delay in bringing the suit.

In City of Wheeling v. Trowbridge e.i ux., 5 W. Ya. 353, it. was held, that, where an action is brought by the husband and wife for a wrong to the wife, there can be no recovery for what is special damage to the husband; that the wife may join with her husband, where she is the meritorious cause of the action, and where the right of action would survive to her, it the husband died before the amount ot damage was recovered; otherwise, where the husband alone is entitled to damages, and in the case of his death they should go to his personal representatives. In that case one count in the declaration alleged damages to the husband; in another count alleged damages in a case, where the wife was the meritorious cause of the action. It was held that a demurrer to the declaration should be sustained because the different causes of action were united in the same declaration.

In Holton v. Daly, 106 111. 131, Michael Daly brought an action against Charles C. Holton for injuries caused by the burst of an emery wheel. The cause was tried, and a verdict rendered against the defendant for $5,000.00. At a subsequent term judgment was entered on the verdict. The judgment was revewed by the appellate court, and the case remanded for a new trial. Subsequent to this Michael Daly died intestate and ...