Eastburn v. Norfolk
Decision Date | 07 February 1891 |
Citation | 34 W.Va. 681 |
Court | West Virginia Supreme Court |
Parties | Eastburn v. Norfolk & W. R. Co.(Holt, Judge, absent.)-- |
Where a brakeman on a freight train receives an injury by reason of a collision with another train, and it is manifest from the evidence that by his own failure to comply with the duties required of him by the train rules, with which he was familiar, and by abandoning his post and going to sleep, he directly contributed to the injury he received, no damages can be recovered by said brakeman from the railroad company for said injury.
When the evidence discloses that the injury was caused by the mutual fault of both parties, and that it would not have happened except for the culpable negligence of the party injured, concurring with that of the other party, there can be no recovery of damages by the party injured, unless said injury could have been avoided after the defendant had notice of the negligence of the plaintiff, or was wanton or malicious.
A. W. Beynolds and Douglas § McNutt for plaintiff in error, cited:
15 W. Va. 628; Greenl. Ev. (Redf. Ed.) 135; 26 Gratt. 351; 26 Ga. Ill; 7 Gray 92; 12 W. Va, 699, 709; 24 W. Va. 606; 4 II. & M. 125; 17 W. Va. 683, 684; 2 Gratt. 333; 28 Gratt. 800; 74 Ala. 150, 487; 72 Ala. 411; Whart. Keg. § 420; Shearm. & Redf. Keg. (4th Ed.) §§ 54, 180; 13 W. Va. 261; 28 W. Va. 736, 737, 738; 17 W. Va. 190; 29 W. Va. 98; 16 W. Va. 658; 8 Am. & Eng. R'y Cas. 467; 6 Am. & Eng. R'y Cas. 27; 26 Am. & Eng. R'y Cas. 396; 29 Am. & Eng. R'y Cas. 297; 23 Am. & Eng. R'y Cas. 258; 28 Am. &
86 Eng. R'y Cas. 665; 31 Gratt. 200; Id. 812; 78 Va. 645, 663; 79 Va. 241; 80 Va. 546; 81 Va. 783; 83 Va. 932; 31 W. Va. 120-122; 29 W. Va. 98; 28 Am. & Eng. R'y Cas. 379: Id. 587; 103 Ill. 512; 75 Mo. 475; 68 Mo. 595; 75 Mo. 575; 28 W. Va. 618.
Johnson & Hale for defendant in error, cited: 1 Greenl. Ev. §§ 113, 114; 64 Am. Dec. 763; Pierce R'd 317; 25 Am. Dec. 282; 17 Conn. 441; 29 Am. Dec. 543; 100 IT. S. 37; 10 S. E. Rep. 29; 9 Wall. 726; Sto. Ag. §§ 139, 253; 32 Gratt. 399; 38 Miss. 242; 30 W. Va. 798; 16 Otto 700; 37 Am. Rep. 491; 29 Am. Rep. 975; 13 Am. Rep. 545; 69 Am. Dec. 317i 81 Va, 71; Beach Con. Neg. § 18; 62 Am. Dec. 246; 58 Am. Dec. 191; 21 la. 25; 9 Wis. 214; Pierce R'd 326-328; 27 W. Va. 145; 35 N. Y. 9; 29 N. Y. 383; 8 Ohio St. 570; 26 Wis. 223; 2 Wood R'y L. 1074; 28 W. Va. 732: Beach Con. Neg. § 162; 128 U. S. 91; 28 W. Va 618-620; 78 Va. 745; 27 W. Va. 164; 17 W. Va. 190; 9 W. Va. 270; 33 Md. 542; 31 Gratt. 812, 818; Code c. 125, s. 16; 18 W. Va. 19, 20; 26 Gratt. 537; 12 Wall 65-86.
This was an action of trespass on the case brought by Walter D. Eastburn against the Norfolk & Western Railroad Company in the Circuit Court of Mercer county, and the declaration was filed at the October rules, 1889. On the 20th day of December, 1889, the defendant demurred to the plaintiff's declaration, and to each count thereof, in which demurrer the plaintiff joined, and the court overruled the same, and thereupon the defendant pleaded "not guilty," and issue was joined thereon, which issue was submitted to a jury, and resulted in a verdict in favor of the plaintiff for three thousand and three hundred dollars; and thereupon the defendant moved the court to set aside the verdict and grant it a new trial, on the ground, among others, that the verdict was contrary to the law and the evidence, which motion was overruled by the court, and the defendant excepted, and tendered four bills of exception, numbered 1, 2, 3, and 4, which were made a part of the record in the case, and the court entered up a judgment upon said verdict, and from said judgment the defendant applied for and obtained this writ of error.
During the trial and after the closing of the testimony in the case the plaintiff asked the court to give the jury certain instructions, which are numbered 2, 3, 7, and 8, and are set forth in bill of exceptions No. 2, taken by the defendant, which were objected to by the defendant, and the objection was overruled by the court, and exception taken. These instructions are in the words and figures following:
The defendant also asked the court to give the jury eleven instructions, which are contained in bill of exceptions No. 3, which instructions were objected to by the plaintiff, and the court sustained said objections to instructions Nos. 1, 2, 3, 4, 6, 8, and 9, and refused to give the same to the jury, but gave instructions Nos. 5, 7, 10, and 11, and the defend- ant excepted to the action of the court in refusing to give said instructions Nos. 1, 2, 3, 4, 6, 8, and 9 to the jury. Said instructions asked for by the defendant read as follows:
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