Duty v. Chesapeake & O. Ry. Co.
| Decision Date | 28 November 1911 |
| Parties | DUTY v. CHESAPEAKE & O. RY. CO. |
| Court | West Virginia Supreme Court |
Submitted January 17, 1911.
Rehearing Denied Jan. 12, 1912.
Syllabus by the Court.
If the good count or counts of a declaration, and the evidence thereunder be sufficient to support the verdict, the judgment thereon will not be vitiated by the error of the trial court if any, in overruling the demurrer to a bad count, when it clearly appears that the defendant has not been prejudiced thereby.
The first count of the declaration in this case, though omitting to allege, as did the second, that defendant failed to stop its train at the station where plaintiff offered herself as a passenger, and was injured, for a sufficient length of time to enable her to get aboard, and to a place of safety held good on demurrer.
Where there are two corporations of the same name, one created under the laws of one state, the other of another, but the corporation intended to be sued, has in fact been sued, and duly served with process, but on the trial plaintiff discovers that in one count of his declaration he has erroneously alleged the wrong state under the laws of which defendant was incorporated, it is not error for the trial court, after non-suit suffered, and set aside, on his motion to permit plaintiff to amend his declaration by striking out the erroneous allegation. Such an amendment is authorized by section 14, chapter 125, Code 1906.
Such an amendment is not the introduction of new cause of action against the defendant actually sued.
Nor will a non-suit thus suffered and set aside, amount to a voluntary abandonment or discontinuance of the old suit, and the beginning of a new action, so as to entitle defendant to have its plea of the statute of limitations applied to the date of the amendment, and not to the date of the writ commencing the suit. Section 12, chapter 127, and section 19, chapter 104, Code 1906, are decisive of this point.
The verdict for the plaintiff is not contrary to the overwhelming weight and preponderance of the evidence.
The questions of the manner in which plaintiff sustained her injuries; the reasonableness of the stop made at defendant's railway station; whether plaintiff was attempting to board a moving train at the time of her injuries, and whether defendant was guilty of negligence in not seeing her and seeing that she got on the train, and to a place of safety, before giving the signals to go ahead, all depended on conflicting evidence and attendant circumstances and were properly submitted to the jury.
It is actionable negligence for a conductor or other servant of a railroad company to start a train while passengers are obviously in the act of getting on it, or alighting therefrom.
It is not error to reject instructions the subject of which has been substantially covered by other instructions given.
If the affidavits on which a motion for a new trial for after discovered evidence is based, are rebutted by counter affidavits, it is for the court below exercising a sound judicial discretion to say whether a new trial should be granted, and its judgment should not be disturbed, except for plain abuse of that discretion.
(Additional Syllabus by Editorial Staff.)
In Code 1906, c. 127, § 12, providing that all causes in which orders of dismissal or orders of nonsuit have been set aside and the cause reinstated shall remain on the docket and be proceeded with "in the same manner" as if the order had never been made, the quoted phrase means with all the rights preserved, the same as if a nonsuit had never been suffered.
Error to Circuit Court, Cabell County.
Action by Amanda S. Duty against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Simms, Enslow, Fitzpatrick & Baker, for plaintiff in error.
Marcum & Marcum, for defendant in error.
Defendant by writ of error seeks reversal of the judgment below against it for five thousand dollars, damages for injuries alleged to have been sustained by plaintiff while a passenger, at West Hamlin, in Lincoln county, on the night of September 24 1907.
The first point of error is the overruling of the demurrer to the amended declaration and to each count thereof. This declaration contains two counts. The second count, among other things, avers the duty and the breach thereof by defendant to stop its train at its said station, on the night in question, a reasonable length of time to enable plaintiff to get aboard and to reach a place of safety. This count is concededly good, but it is insisted that the first count, which omits this averment, but which avers other duties of defendant to plaintiff, and the willful, wanton, reckless, and negligent disregard thereof, resulting in the injuries complained of, is nevertheless fatally bad, demanding reversal of the judgment and that a new trial should be awarded.
The law on this subject, however, is that if the good count and the evidence thereunder, be sufficient to sustain the verdict and judgment, the error, if any, in not, on demurrer, suppressing the bad count, will be disregarded by an appellate court, if it clearly appears that the action of the court on the bad count and the evidence, if any, admitted thereunder, has not resulted in an excessive verdict, or that the defendant has not been otherwise prejudiced thereby, this upon the same principle that where there is but one count, which contains good and bad matter, and a general demurrer thereto is properly overruled, the bad will not after verdict vitiate the good, unless prejudice due to the bad matter and evidence thereunder has resulted to the defendant. Robrecht v. Marling, 29 W.Va. 765, 773, 2 S.E. 827, and cases cited; 6 Ency. Pl. & Prac. 367, citing, at page 368, numerous Alabama and Indiana decisions, sustaining the proposition.
But is the first count bad for omitting the alleged primary and paramount averment? It avers facts sufficient to establish the relationship of passenger and carrier; the duty of defendant thereafter to use all due and proper care, caution, skill and diligence in and about the operation and movement of its locomotives, engines, cars, coaches and trains and so forth, so as to prevent and avoid all hurts, injuries, accidents, and dangers to plaintiff, and to carry her safely and securely to destination; the disregard of those duties, in that while at the instance and request of defendant, she was attempting to board the defendant's regular passenger train and the car or coach thereof at said station, to be carried safely to destination, and while said train was standing motionless, and while she in the exercise of all due and proper care and diligence for her own safety and security, the defendant, its officers, agents and servants, without ring of bell, blow of whistle, or giving the usual and customary warnings and signals, or warning or signal of any kind, whatsoever, wantonly, recklessly, carelessly, and negligently caused said train and the car or coach whereon plaintiff was then and there in the act of boarding, to be suddenly and quickly and without warning started and jerked forward and whereby she was then and there hurled and thrown with great force and violence from the platform and from the step of the car or coach which she was then and there in the act of boarding, as aforesaid, resulting in the injuries of which she complains. Does this state a good cause of action? It is insisted that it does not, for the reason noted.
To sustain this proposition Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 39 L.R.A. 499, 64 Am.St.Rep. 922, is mainly relied on. We do not think this case supports the contention of counsel; quite the contrary. If in disregard of its alleged duties defendant, as this count avers, while plaintiff was in the act of boarding the train, without notice as alleged, wantonly, recklessly, carelessly and negligently caused its train and coach in which, in the exercise of due and proper care and diligence, she was so attempting to enter, to be suddenly started and jerked forward, causing her injuries, it was guilty of actionable negligence. The count states with reasonable certainty the main or primary acts of omission and commission doing the damage, within the rule of the case cited, namely the duty of defendant, while plaintiff was so in the act of boarding its train not to so wantonly, recklessly and carelessly and negligently move its train as to injure her. Whether or not defendant did so offend might, on the trial, depend on whether a stop of sufficient length was made, and whether defendant's servants saw or reasonably ought to have seen plaintiff in her place of danger when giving the signal to go ahead, but the want of averment of that fact did not in our judgment render the count bad on demurrer.
But even if the count be bad, we can plainly see, the second count being concededly good, that defendant was not prejudiced by the action of the court on the first count, and that the judgment ought not to be reversed for any error therein. No evidence was admitted under the first count, not admissible under the second, and nothing could have been added by way of damages under the first count not provable under the second count, wherefore defendant could not have been prejudiced.
The next point is that the court erroneously permitted plaintiff to withdraw a juror, and on a non-suit suffered, but set aside the same day on her motion, to amend her declaration by striking out of the first count the words, "State of West Virginia," descriptive of the corporation sued leaving the corporate name as described in the writ executed upon the defendant company, and as described in the...
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