Fisher v. West Va.

• Decision Date: 11 April 1894
• Court: West Virginia Supreme Court
• Parties: Fisher v. West Virginia & P. R. Co.(Brannon, President, Absent.)

39 W.Va. 366

Fisher

v.West Virginia & P. R. Co.

(Brannon, President, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 22, 1894.

Decided April 11, 1894.

1. Railroad Companies Damages.

A railroad company chartered by the state can not without legislative authority by lease or by any other contract or arrangement turn over to another company its road and the use of its franchises, and thereby exempt itself from responsibility for the conduct and management of the road. Ricketts v. Railway Co. 33 W. Va. 433 (10 8. E. Rep. 801).

2. Railroad Companies Damages.

A railroad company as a carrier of passengers is not an insurer; but its duty is to carry them safely, using the utmost care, as far as human skill, dilligence and foresight can reasonably be required to go; but the passenger must not be guilty of contributory negligence.

3. Railroad Companies Damages.

A passenger is riding on the platform of the car in such a state ¦ of intoxication as to be careless and heedless of the danger to which he is exposed, it is the duty of the railroad company, after the conductor has notice of his condition and exposure to danger, to use the ordinary precautions for his safety, such as calling his attention to the danger, and the rules of the company forbidding such exposure, and inviting him to go inside of the car.

4. Railraod Companies Damages Negligence.

It is the duty of a passenger unnecessarily riding on the platform of a car in motion to go into the car when requested by the conductor or other person having charge of the train, when there is standing room inside; and, if by reason of his refusal to do so and by going down on to the steps of the car without the knowledge of the conductor or other person having charge of the train he loses his balance, falls overboard and is injured, he is guilty of contributory negligence, such as will preclude his recovery for such injury.

5. Negligence Damages

The question of contributory negligence is a mixed question of law and tact, and, while it is a question for the jury to determine, it must be determined by them by applying the law to the facts, anil where instructions are given by the court, pertaining to the questions at issue, which propound the Jaw correctly, they can not be disregarded in reaching their verdict, and if instructions asked for by the plaintiff, and given, are calculated to mislead the jury as to the questions at issue, which are excepted to by the defendant, a verdict in accordance therewith will not be sustained.

6. Negligence Damages.

One cannot voluntarily incapacitate himself from ability to exercise ordinary care for his own self-protection, and then set up such inability as an excuse for his failure to use care; and if the intoxication contributed to the injury, as a proximate cause thereof, it is a complete bar to any action for any damages sustained in consequence of it.

J. Brannon and W. W. Brannon for plaintiff in error:

I. Instructions not based on evidence irrelevant. 10 Gratt.

13; 11 Gratt. 587; 31 W. Va. 688 and 684; 10 Gratt. 236; 26 Gratt. 594; 1 Bart. L. P. 2, 656, note 5.

II. The established facts in the case do not justify 'charge of

negligence against defendant. 54 Am. and Eng. R. cases, 640 and cases cited.

III. Defendant has right to prescribe reasonable rules for its business. Bus. Law Pers. Inj. g 156 and cases cited.

IV. No right of recovery when passenger exposes himself to danger. Patt. R. Ace. 272 and 273; 2 Beach Law of R. §§ 860 and 993; Beach Con. "Neg. 149; 11 S. E. Rep. 187; 2 Woods R. L. § 303; 18 Am. St P. 544; 2 Beach L. of R. 860; Deer. Neg. 92; 78 Va. R. 645;

¦ 35 W. Va 389; Schoul. Bailm. and Carr. § 652, p. 707, note 3; Beach Con. Neg. 286 and note 3.

V. Intoxication as bearing on contributory negligence. 4 Am.

& Eng. Enc. of L. p. 78, g 34 and cases there cited; 37 W. Va. 87.

J.J.Davis and C. C. Higginbotham for defendant in error:

I. No error in the first instruction for the defendant in error.

Beach Contrib. Neg. § 144;' 11 Gratt. 697; 29 Gratt. 431; 14 How. 468; 102 U. S. 451; Cool. Torts, 768.

II. There is no error in the second instruction given by the

court at the request of the appellee. 35 W. Va. 390-403; Beach. Contrib. Neg. § 54; 1 Harp. Dam. § 341; Cool. Torts, 812; 2 Am. & Eng. Enc. Law, 748; 10 M. and W. 546: 9 Ex. 91; 10 Ex. 100; 1 App. Cas. 754; 5 E. & R. 195; 85 E. C. L.; 12 C. B. (N. S.); 2, 101 E. C. L.; 5 C. B. (N. S.) 573; 94 E. C. L; 43 Mo. 380; 37 Mo. 537; 36 Mo. 351; 36 Mo. 484; 40 Mo. 153; 40 Mo. 506; 11 Irish Com. Law, 377; 46 111. 76; 51 111. 333; 4 Bush, 593; 5 Bush, 1; 18 Ga. 679; 19 Ga. 437; 19 Ga. 443; 17 W. Va 191; 16 W. Va. 397; 9 C. & P. 613; 38 E. C. L.; 7 Q. B. 339, 878, 53 E. G; 12 Q. B. 439, 64 E. C. L.; 2 B. & S. 106, 110 E. C. L.; 6 B. & S. 709, 118 E. C. L.; 27 Conn. 393; 56 Cal. 513 (8 Am. & Eng. R. R. Cas. 314); 37 Cal. 409; 5 Colo. 197 (8 Am. & Eng. R. Cas. 410); 24 Md. 81; 24 Vt. 487: 16 Conn. 421; 3 Ohio St. 172; 16 Neb. 332 (19 Am. & Eng. R. R. Cas. 25); 62 Md. 391 (19 Am. & Eng. R. R. Cas. 261); 61 Md. 154 (19 Am. & Eng. R. R. Cas. 321); 5 Duer, 27; 18 N. Y. 248; 33 Md 542; 7 Bush (Ky.) 235; 6 Bush (Ky.) 574; 22 Ind. 26; 42 Ark. 321 (19 Am. & Eng. R. R. Cas. 30); sed (f. 86 Pa, St. 139; 42 Pa St. 493^; 49 Pa. St. 193. 92 Pa. St, 475; 68 Mo. 598; 72 Mo. 414 (3 Am. and Eng. R. R. Cas. 865); 60 Mo. 482; 65 Mo. 22; 81 Mo. 434' (22 Am. & Eng. R. R Cas. 534); 71 Mo. 476 (2 Am. & Eng. R. R. Cas. 191).

III. The court committed no error in striking out the special plea shown on page 10 of the record. It was a plea in abatement. It was not verified, by affidavit. Code, 1891, 806; Code, 1887, 786; Acts 1882, '159; Code, 1868, 605; 10 W. Va. 507.

IV. The matter set up in the plea was no ground for the dismissal of the plaintiff's action. 33W. Va. 433, 434, 435 and 436!

Y. It is the duty of railroad, companies to make regulations for the safe conduct of passengers and, to publish the same. 2 Am. & Eng. Enc. L. 759; 26 la. 124; 30 Pa. St. 238: 32 Pa. St. 326; 56 Pa. St. 294; 32 Pa. St. 414; 11 Neb 177.'

VI. It is the duty of a carrier to enforce its regulations. 2 Am. & Eng. Enc' Law; 88 N C. 586; (18 Am. & Eng. R. R. Cas. 391); 86 1ST. C. 139.

VII. A passenger's ticket entitles him to a seat. 2 Harris' Dam. Corp. § 614;.83 Mo. 454; 31 N. E. Rep. 406; 38 111. App. 33; 85 Mich. p. 12; 142 Pa. 47; 15 S. W. Rep. 572; 35 P. Rep. 245; 32 Mo. 438; 84 Ga. 553; 148 Mass. 343; 34 N. Y. 670; Seoul. Bail. & Carr. § 642; 3 Am. Repts. 581; 12 Am. Repts. 720; Whitt. Sm. Neg. 803-304, and notes; 98 N. Y. 650; 35 Barb. 389; 34 N. Y. 670,

English, Judge:

This was an action of trespass on the case brought by John H. Fisher, an infant acting by his next friend, John S. Fisher, against the West Virginia & Pittsburg Railroad Company in the Circuit Court of Lewis county, to recover from the defendant damages alleged to have been oeca-ioned by the negligence of the defendant in carrying the plaintiff as a passenger over its road from the town of Weston to the town of Buckhannon in this state. The defendant appeared at rules, demurred to the declaration and pleaded not guilty; also tiled a special plea in writing setting up therein that at the time the injury occurred and before that time the defendant had leased its road to the Baltimore & Ohio Railroad, and the said last named road was the lessee in possession of and operating the said road, at the time the alleged injury occurred, and should have been made sole defendant, which plea was rejected, and issue was joined upon the plea of not guilty. The case was tried before R. G. Linn, special judge. The defendant's demurrer to the declaration was overruled, and, it appearing that said John 11 Fisher was then over the age of twenty one years, it was ordered that the case proceed in the name of said John II. Fisher. On the 15th day of March, 1893, the ease was submitted to a jury, who rendered a verdict for the plain-47 tiff assessing his damages at three thousand and five hundred dollars; and thereupon the defendant moved the court to set aside the verdict and grant it a new trial, on the ground that the same was contrary to the instructions of the court and to the evidence and on other grounds set forth in the bill of exceptions, which motion was overruled; and judgment was rendered for the plaintiff on the verdict; and this writ of error was applied for and obtained.

The first error assigned by the plaintiff in error is that the court erred by rejecting the plea in writing filed by the defendant. This assignment, however, I do not regard as well taken, as the question raised by this plea was before this Court in the case of Ricketts v. Railway Co., 33 W. Ya. 433 (10 S.E. Rep. 801) in which it was held that "a railroad company chartered by a state can not without distinct legislative authority by lease, or any other contract or arrangement turn over to another company its road and the use of its franchises, and thereby exempt itself from responsibility for the conduct and management of the road;" the plea relied on in this case averring that the defendant had leased its road and rolling; stock, etc., to the Baltimore & Ohio Railroad Company before this injury occurred, and the Baltimore & Ohio Railroad Company was the lessee of the defendant at the time supposed grievance occurred, etc.

The next assignment of error pertains to the action of the court in giving instructions No. 1 and 2 asked for by the plaintiff, which read as follows:

Instruction No. 1: "The court instructs the jury that, in the transportation of passengers, a railroad company is bound to exercise more than ordinary care and diligence, and is liable for the slightest negligence, against which prudence and foresight could have guarded."

Instruction No. 2: "The court instructs the jury that although the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the injury, yet if they find from the evidence that the...