Downey v. C. & O. Railway Co.

• Decision Date: 06 November 1886
• Citation: 28 W.Va. 732
• Court: West Virginia Supreme Court
• Parties: Downey v. C. & O. Railway Co.

28 W.Va. 732

Downey

v.C. & O. Railway Co.

Supreme Court of Appeals of West Virginia.

Submitted September 13, 1886.

--Decided November 6, 1886

1.The general rule is, that in an action for negligence the plaintiff can not succeed, if it is found by the jury that he has himself been guilty of negligence or want of ordinary care, which contributed to cause the injury. But this rule is subject to this important qualification: Though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the injury, yet if the defendant could by the exercise of ordinary care and diligence have avoided the injury, the plaintiff's negligence will not excuse or relieve the defendant from liability, (p. 737.)

2. In a case involving the doctrine of contributory negligence the court should not instruct the jury, that the negligence of defendant's servants in charge of its railway train is the negligence of the defendant, for which if to responsible, (p. 738.)

3. In such case, if the fault or negligence of the plaintiff was the proximate cause of the injury, the defendant is not responsible, although it may have been negligent and the remote cause of the injury, (p. 738.)

4. If the passenger would hold the railroad company to the full measure of its responsibility for sate carriage, he must conform to all the reasonable rules the company makes looking to the safety of its passengers, (p. 789.)

5. If the passenger rides, where he has no right to rifle by the rules of the company, or in a place of great danger as on the top of the car or cow-catcher or pilot of the engine--where no man of ordinary prudence would attempt to ride, the mere knowledge or consent of the conductor or trainmen to his riding there will not entitle the plaintiff to any greater rights against the company on account of any injury receive! by him while so riding, than if the conductor and trainmen had been wholly ignorant that he was so riding, (p. 740.)

6. Where a railroad company is in the habit of carrying its shopmen to and from their work as a matter of accommodation and without any agreement or compensation therefor, if its train is so crowded, that one of said shopmen can not get a seat in the cars, that fact will not justify him in sittingon the pilot of the engine; and if he does improperly do so, it is his duty to leave the pilot and go into the cars at his first opportunity, (p. 742.)

7. Where the evidence does not tend to prove, that the injury complained of was caused by the wilful, wanton or oppressive conduct of the agents of a railway company, and that such conduct was expressly or impleidly authorized or ratified by the company, it is error to refuse to instruct the jury, that in such case they can not give punitive or exemplary damages, (p. 743.)

E. Gibson and T. J. Michie for plaintiff in error.

J. H. Ferguson for defendant in error.

Snyder, Judge:

Action brought December 21, 1880, in the circuit court of Cabell county by John W. Downey against the Chesapeake and Ohio Railway Company to recover damages for injuries received by the plaintiff through the alleged negligence of the defendant. On June 21, 1881, there was a verdict in favor of the plaintiff for $5,000.00, on which the court entered judgment. The defendant demurred to each count of the declaration, which demurrer the court overruled. After the evidence had been introduced, the plaintiff submitted three instructions to each of which the defendant objected, but the court overruled the objection, and the instructions were given to the jury. The defendant then asked twentytwo instructions, numbered from one to twenty-two inclusive, to each of which the plaintiff objected. The court overruled the objection to Nos. 1, 2, 4, 6, 10, 11 and 12, and permitted these to go to the jury, but sustained the objection to all the others and excluded them from the jury. After the verdict had been returned, the defendant moved the court to set the same aside, which motion the court overruled. To each and all of said rulings the defendant duly excepted. In order to have said rulings reviewed by this Court, the defendant obtained this writ of error.

The declaration contains two counts, the first.of which alleges, that the plaintiff was one of a number of skilled laborers in the service and employment of the defendant at its machine-shops and round-house in the city of Huntington, and upon its engines and carriages, for hire and reward; that the defendant had agreed, in consideration of such employment, to carry and convey said laborers by proper engines and carriages to and from its depot in said city to and from its machine-shops and round-house without additional or other reward or compensation; and that while the plaintiff was being conveyed under said agreement he was injured by the mere negligence and misconduct of the defendant and in violation of said agreement. The second count alleges that, at the time of the injury, the plaintiff was being carried as a passenger by the defendant upon its railway, and the injury was caused by the negligence and default of the defendant without any fault or negligence on his part.

I have carefully examined the declaration and think the demurrer thereto was rightly overruled

The plaintiff on the trial offered evidence tending to prove the following facts: The plaintiff was twenty-five years of age and was, at the time the injury occurred, employed by the defendant as an apprentice blacksmith and was working at the machine-shops of the defendant at Huntington, and had been so working for eight years. His wages were from $1.00 to $1.35. per day. On August 29, 1880, he was on engine No. 29, sitting on the pilot or cow-catcher, with his legs hanging down in front. The train was made up of the engine and tender, one combination car and one box car without seats. The combination car would seat about thirty persons. The engine was in the rear of the cars next to the box car, with which it was connected by a drawbar. In this condition the cars were being pushed over the road by the engine. On the morning of the accident, this train left the depot shortly after six o'clock with about eighty employes of the defendant upon it to be conveyed to the shops. There were not enough seats for all; some went into the cars, some on top, some on the engine and tender, and the plaintiff and one Dixon got on the pilot. The engineer could see plaintiff sitting on the pilot, and did not tell him to get off. Plaintiff had ridden on trains about all the time he had been in the employ of the defendant. The cars furnished for the hands to go to and from the shops were sometimes a flat, sometimes coal-jimmies, box car and passenger car. Men would get on wherever they could and as they could. The track was bad on the line between the depot and shops; there were five switches and the distance was about three miles. The injury occurred at the "Y." The train was running about eighteen or twenty miles per hour was going southeast and was struck in front by engine No. 23 going southwest. It was quite foggy. The engineer of No. 29 could not see over the cars in the direction he was running. The train attached to and running in front of engine No. 29 was run into by engine No. 23 at the "Y." In the collision the plaintiff's arm was caught between the draw-bar of the car and smokestack bar-brace on right side of brace; he was between the flagstaff and smokestack brace; his left arm caught in brace and right arm was hold of flagstaff; and his feet hanging over cow-catcher; his arm was mashed near the shoulder so that it had to be amputated above the elbow. He was sick for forty-eight days, from August 9, 1880; his health was good before the injury and not very good since. Before going upon the train thatmorning plaintiff went to the combination-car, looked in the door and saw no vacant scats; all the seats were occupied so far as he saw; he then came back, met Dixon and they got on the pilot; Dixon got oft the pilot before the accident; the train first stopped at coal tipple where eight or ten men got off, next at oil shed, and again at engine works; men got off from different parts of the train at all these places; plaintiff might have gotten off at any of these places if he had hurried, but he preferred to remain where he was to running the risk of going to the car. He never saw or heard any orders of the company as to riding on car or engine.

On the other hand, the defendant introduced evidence tending to prove the following facts: The plaintiff while sitting on the pilot was told by Dixon to get off of it, that it was a dangerous place, but plaintiff refused to do so and Dixon then got off and left him there. The plaintiff knew the rules of the defendant, and that they prohibited any of the shophands from riding on the engine; a printed notice of these rules being posted up in engine No. 23; it had no contract to carry the plaintiff or other shop-hands to and from their work, but did so gratuitously when it chose to do so at all; the pilot of the engine is a very dangerous place for any one to be and its rules forbid anyone to occupy it; there was no necessity for the plaintiff to ride on the pilot; there was plenty of standing room in the cars where the plaintiff could have safely ridden; no one except the plaintiff and one Mathews was seriously injured by the collision, and Mathews, at the time, was riding on top of the freight car; the train was not at the time running up to the speed allowed by the schedule, but only about ten miles per hour; there were vacant seats in the train at the time the plaintiff was hurt, and he had ample time during the times when the train stopped to let men get off to have gotten off the pilot and gone into the car; and no one was hurt in any of the cars by the collision.

The plaintiff's instructions given to the jury by the court were as follows:

" No. 1. If the jury believe from the evidence that the conduct of the...