Fisher v. West Va. & P. R. Co
| Decision Date | 11 April 1894 |
| Citation | 19 S.E. 578,39 W.Va. 366 |
| Court | West Virginia Supreme Court |
| Parties | FISHER v. WEST VIRGINIA & P. R. CO. |
Railroad Company—Effect of Lease—Injuries to Passenger — Contributory Negligence — Intoxication.
1. A railroad company chartered by the state cannot, 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. Rickctts v. Railway Co., 10 S. E. 801, 33 W. Va. 433.
2. 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, diligence, and foresight can reasonably be required to go, but the passenger must not be guilty of contributory negligence.
3. 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. 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 such refusal, and by going down onto the steps of the car without the knowledge of the conductor or other person having chargeof 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. The question of contributory negligence is a mixed question of law and fact, and, while it is a question for the jury to determine, it must be determined by them by applying the law to the facts; and where instructions are given by the court, pertaining to the questions at issue, which propound the law correctly, they cannot be disregarded in reaching their verdict, and if instructions asked for by the ylaintiff, 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. 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.
Holt, J., dissenting. (Syllabus by the Court.)
Error to circuit court, Lewis county; R. G. Linn, Special Judge.
Action by John H. Fisher against the West Virginia & Pittsburg Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
John Brannon and W. W. Brannon, for plaintiff in error.
J. J. Davis and C. C. Higginbotham, for defendant in error.
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 occasioned 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, filed 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, 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 H. Fisher was then over the age of 21 years, it was ordered that the case proceed in the name of said John H. Fisher. On the 15th day of March, 1893, the case was submitted to a jury, which resulted in a verdict for the plaintiff, assessing his damages at $3,500; 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 for other grounds sot 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. Va. 433, 10 S. E. 801, in which it was held that "a railroad company chartered by a state cannot, 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 defendant, after having notice of plaintiff's dangerous exposure, did not exercise ordinary care and diligence to prevent his injury, the plaintiff's negligence will not excuse nor relieve the defendant from liability, "—which instructions were objected to by the defendant, the objection was overruled by the court, the instructions given to the jury, and the defendant excepted. Do these instructions propound the law correctly? As to instruction No. 1, in my opinion the circuit court erred in giving it to the jury without qualification. While it is true that it is the duty of a common carrier of passengers to use the utmost care in providing for their safety, yet I can well see how a jury might be misled by the instruction referred to. To instruct the jury that, in the transportation of passengers, a railroad company is bound to exercise more than ordinary care and diligence, is a proposition we can readily accede to; but to add, without qualification, that it is liable for the slightest negligence, against which prudence and foresight could have guarded, appears to me to have a directtendency to mislead the jury to the prejudice of the defendant, especially under the state of facts disclosed in this case, unless the jury had been further instructed that the plaintiff could not recover if he himself was guilty of contributory negligence. The facts proved in this case clearly show that the plaintiff was guilty of contributory negligence; and instruction No. 1, taken by itself, leaving out any reference to the question of contributory negligence, would have a strong tendency to mislead the jury, and should not have been given. Barton states the law, in his Law Practice, as follows (in volume 1, p. 656): "The court is not bound to give an instruction upon a mere abstract question, and, if it does so under circumstances calculated to mislead the jury, such an instruction will be error for which the judgment will be reversed;" citing Pas-ley v. English, 10 Grat. 236. Again, in the case of McKelvey v. Railway Co., 35 W. Va. 501, 14 S. E. 261 (), this court held that a bad instruction is not cured by a good one; though they be given on the motion of adverse litigants, the bad instruction should be withdrawn. Brannon, J., delivering the opinion of the court in that case, says: citing Kingen v. State, 45 Ind. 518; Railroad Co. v. Kendrick, 40 Miss. 374; Railroad Co. r. Stallmann, 22 Ohio St. 2.
In considering the propriety of instruction No. 2, which was asked for by the plaintiff, and given to the jury by the court, it becomes necessary to inquire what is intended in said instruction by the words "dangerous exposure, " of which it is implied the defendant had notice by the wording of said instruction, and what was the proximate cause of the injury complained of; and first let us inquire what was the condition of...
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