Eastburn v. Norfolk & W. R. Co

• Decision Date: 07 February 1891
• Citation: 34 W.Va. 681,12 S.E. 819
• Court: West Virginia Supreme Court
• Parties: Eastburn v. Norfolk & W. R. Co.

12 S.E. 819

34 W.Va. 681

Eastburn

v.Norfolk & W. R. Co.

Supreme Court of Appeals of West Virginia.

Feb. 7, 1891.

Injuries to Brakeman—Contributory Negligence—Mutual Fault.

1. 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.

2. 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. (Syllabus by the Court.)

Error to circuit court, Mercer county.

A. W. Reynolds and Douglass & McNutt, for plaintiff in error.

Johnston & Hale, for defendant in error.

English, J. 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, and 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 $3,300; and thereupon the defendant moved thecourt 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 exceptions taken, which instructions are In the words and figures following: "Instruction No. 2: Thecourt further instructs the jury that if they believe from the evidence in this case that A. J. Hearn was the conductor of one of the defendant's freight trains, upon which plaintiff was a brakeman, and, while on said train, plaintiff was injured, and that said Hearn, as such conductor, under the rules and regulations of the defendant introduced as evidence in this case, had the management and control, and was responsible for the safety of his train, and that it was his duty to be familiar with the duties of the brakeman on his said train, and to enforce and to see enforced the rules of said defendant applicable to said brakeman, and that it was the duty of rear brakeman and flagman Clark to go to the rear, and flag approaching trains, and that it was the duty of said Hearn to see that Clark performed said duty, and that said Clark did not perform.said duty, and that said Hearn failed and neglected to require and see that said Clark, the rear brakeman and flagman on Ms said train, did go to the rear for the purpose of flagging anotherof defendant's trains approaching and following said Hearn's train; and if they further believe from the evidence in the case that, by reason of such failure on the part of Conductor Hearn to have his train flagged, said approaching train of the defendant following said Hearn's train ran into and collided with the same, which injured the plaintiff, and of which injury the plaintiff in this casecomplains, —then the jury may infer negligence on the part of the defendant, in the absence of evidence negativing such negligence. Instruction No. 3: The court further instructs the jury that, if they believe from the evidence in this case the defendant was guilty of negligence, and that such'negligence of the defendant directly contributed to and had a share in producing the injury complained of by the plaintiff, the defendant is liable, even though they believe that Clark, the rear brakeman, was guilty of negligence, and that the negligence of Clark, the rear brakeman and flagman, was contributory also. Instruction No. 7: The court instructs the jury that, if they find the defendant guilty, they are, in estimating the damage, at liberty to consider the health and condition of the plaintiff before the injury complained of, as compared with his present condition in consequence of said injuries, and whether said injury is, in its nature, permanent, and how far said injury is calculated to disable the plaintiff in engaging in those pursuits and employments for which, in the absence of said injury, he would have been qualified, and also the physical and mental suffering to which he was subjected, or may be subjected, by reason of said injuries, and to allow such damages as, in the opinion of the jury, will be a fair and just compensation for the injury which the plaintiff has sustained. Instruction No. 8: The court instructs the jury that, although they may believe from the evidence in this case that the plaintiff, Eastburn. in going into the caboose referred to in the evidence, and going to sleep there, was guilty of negligence, and thereby contributed to the injury which he received, yet if they believe from the evidence in the case that the defendant could, by the exercise of ordinary care and diligence, have avoided the injury to the plaintiff, and that the defendant did not use such ordinary care and diligence to avoid said injury, then the plaintiff's negligence will not excludeorre-lieve the defendant from liability."

The defendant also asked the court to give the jury 11 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 defendant 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: "Instruc tion No. 1: The court instructs the jury that, if they believe from the evidence that the plaintiff, before the accident, left his post of duty in violation of a rule of the company, and went to another part of the train, where he was exposed to greater danger than he would have been, and was there injured, he is not entitled to recover damages of the defendant company. Instruction No. 2: Thecourt instructs the jury that, if they believe from the evidence that the plaintiff, before the accident, voluntarily, and in violation of a rule of the company, or of his contract of service with the company, entered the caboose attached to his train, and there went to sleep, and was asleep when his train was run into by train No. 1st 64, in charge of Conductor I. E. Powers, then he was guilty of contributory negligence, and cannot recover damages of the defendant company. Instruction No. 3: If the jury believe from the evidence that the collision of train No. 1st 64, Engineer Gus Lambert, with No. 2d 62, in which collision the plaintiff was injured, was caused by the negligent acts or omissions of Engineer Gus Lambert, then, said Gus Lambert and the plaintiff being fellow-servants, the plaintiff cannot recover damages of the defendant company for said injury. Instruction No. 4: If the jury believe from the evidence that it was the duty of W. C. Clark, rear brakeman and flagman, to flag his train on its stopping at Dry Branch, after the pusher was attached, and he failed to do so, and that his neglect to flag the train was one of the proximate causes of the collision in which the plaintiff was injured, such negligence was the negligence of a fello w-ser v ant of the plaintiff, and the plaintiff cannot recover damages of the said defendant company. Instruction No. 6: If the jury believe from the evidence that the plaintiff willfully or tacitly combined with the other employes of the company to disregard the rules and regulations of the defendant company as to flagging trains when stopping at regular stopping points, and that the collision of trains No. 1st 64 and No. 2d 62, in which collision the plaintiff was injured, was the result of such combination, and if they further believe from the evidence that No. 2d 62 was not flagged by reason of such combination, and that the collision occurred at a regular stopping place for trains, then the plaintiff is not entitled to recover damages of the defendant company. Instruction No. 8: The court instructs the jury that, if they believe from the evidence in this case that Engineer Gus Lambert, on No. 1st 64, was guilty of negligence in colliding with No. 2d 62, and if they believe from the evidence that the plaintiff, W. D. Eastburn, was at the same time guilty of negligence in knowingly retaining a position of danger, and in not taking steps to avert such danger, then he was guilty of such contributory negligence as will prevent him from recovering damages in this case. Instruction No. 9: If the jury believe from the evidence in this case that the plaintiff knowingly and negligently assumed a place of danger, and negligently failed to do his duty in averting such danger, and his said negligence was one of the...