Fowler v. B.

• Decision Date: 19 November 1881
• Citation: 18 W.Va. 579
• Court: West Virginia Supreme Court
• Parties: Fowler v. B. & O. R. R. Co.*(Patton, Judge, Absent.)

18 W.Va. 579

Fowler

v.B. & O. R. R. Co.

*(Patton, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Decided November 19, 1881.

1. In an action for an injury to the person it is not necessary for the plaintiff to allege in his declaration and prove, that he was exercising ordinary care and was not therefore guilty of negligence, which contributed to his injury.

2. Upon a demurrer to evidence the demurrant must be considered as admit-ting all, that can reasonably be inferred by a jury from the evidence given by the other party, atid as waiving all the evidence on his part, which contradicts that of the other party and all inferences from his own evi-dence, which do not necessarily flow from it.

3. Where there is a demurrer to evidence, and the question in the Appellate Court is, whether or not a fact ought to be taken as established by the evidence either directly or inferentially in favor of the demurrer, the test is: Would the court set aside the verdict, had the jury on the evidence found the fact. If the verdict so finding the fact would not be set aside, such fact ought to be considered as established by the evidence demurred to.

4. The negligence of the plaintiff, which will defeat his recovery, must be a proximate cause of the injury.

5. To bar the plaintiff from reoovery, his alleged act of negligence must be such, as, he could under the circumstances reasonably anticipate, would result in his injury.

6. The terms "negligence" and "ordinary care" are correlative terms. Or-dinary care depends on the circumstances of the particular case, and is such care, as a person of ordinary prudence would under the circumstances have exercised.

7. If the defendant has by its own act thrown the plaintiff off his guard and given him good reason to believe, that vigilance was not needed, the lack of such vigilance on his part is no bar to his claim for damages.

8. In an action for damages the judgment should be for the amount assessed by the jury and interest thereon from the date of the judgment, and not from the date of the verdict.

Writ of error and supersedeas to a judgment of the circuit court of the county of Harrison, rendered on the 29th day of June, 1878, in an action then pending in said court, wherein William W. Fowler was plaintiff, and the Baltimore and Ohio Railroad Company was defendant, allowed upon the petition of said company.

Hon. A. B. Fleming, judge of the second judicial circuit, rendered the judgment complained of.

The facts of the case fully appear in the opinion of the Court:

C. Boggess, for plaintiff in error, cited the following authorities: Sher. & Red. on Neg. § 478; 35 la. 191; itf.449; 64 Mo. 297; 63 Ⅲ. 117; 28 Ohio St. 340; 22 Ⅲ 271; 64 Mo. 484; 43 la. 662; 11 W. Va. 14; 5 Otto 439; 31 Gratt. 200; Id. 812; 47 N. Y. 400; 105 Mass. 77; 22 Minn. 165; 39 N. Y. 358; 52 Cal. 602; Code, ch. 131, § 18.

P. H. Keck, for defendant in error, cited the following authorities: Lacey's Dig. §126; 9 U. S. Dig. (1st series) p. 499, §68; Id. § 174; 20 Wis. 533; 29 Ind. 528; 11 U. S. Dig. (1st series), § 1624; 1 U. S. Dig. (N. S.), §27; 6 W. Va. 509; 8 W. Va. 515-535; Lacey's Dig. § 399; 15 Gratt. 250; 11 Gratt. 697; 5 W. Va. 293; Sher. & Red. Neg. §§ 12, 266; 1 U. S. Dig. § 1481; 9 U. S. Dig. (1st series) § 174; Id. §27; Id. §149; Id. § 1512; 11 U. S. Dig. (1st series) § 1530; 1 U. S. Dig. (N. S.) §§ 48, 49; 31 Md. 357; 6 U. S. Dig. (N. S.)§209; 47 Ind. 471; 1 Add. Torts 514; 1.1 U.S. Dig. (1st series) §§ 1685, 1692, 1702, 1511; 29 N. Y. 383; 36 N. Y. 135; 4 U. S. Dig. (N. S.) §173; Id. §29; 5 U. S. Dig. (N. S.) § 122; Id. § 26; 29 Md. 574; 59 111. 554; 61 Ⅲ. 385; 25 Md. 521; 36 How. (N. Y.) 407; Ang. Carr. §§ 547, 568, 569; 13 Pet. 181; Edwds. Bailm. 583, 584, 585, 586, 588, 589; Whart. Neg. §§ 304, 375, 383; Id. §§ 31, 36.

John J. Davis for defendant in error cited the following authorities: Sherm. & Redf. Neg. §§ 31, 44; Id. p. 14 § 12; Id. p. 32 § 28; 15 Wall. 401; 5 W. Va. 293; 11 Gratt, 697; 15 Gratt. 250; 29 Gratt. 431; Greenl. Ev. 221; Edwards Bailm. 585, 586; Sherm. & Redf. Neg. §§ 266, 282, 487; 1 Add. Torts § 545; 4 Mete. 49; 4 Min. Inst. pt. 1 p. 749; 6 W. Va. 509; 8 W. Va. 515; 26 P. F. Smith 157; 8 Cent, L. Jour. 464; 20 111. 478; 19 111. 499; 36 111. 409; 38 Ⅲ. 370.

Johnson, President, announced the opinion of the Court:

In November, 1870, the plaintiff filed his declaration in the circuit court of Preston county against the defendant in a suit to recover damages for an injury alleged to have been done him by the defendant. At a term of said court held in August, 1872, the defendant demurred to the declaration and at the same time pleaded not guilty. At a court held on the 16th day of April, 1874, the demurrer to the declaration was overruled, and the judge of the circuit court being so situated, that it was improper for him to preside at the trial of the case," by consent of the parties" the case was removed to the circuit court of Harrison county. On the 1st day of June, 1876, a jury was empanelled, to try the issue joined in the case, and on the 6th day of June, 1876, the jury rendered a verdict for the plaintiff for $6,600.00, and on the 13th day of the same month on motion of the defendant the verdict of the jury was set aside, and a new trial was awarded. On the 8th day of December, 1876, the case was submitted to another jury, and on the 16th day of the said month that jury found for the plaintiff subject to the defendant's demurrer to evidence and assessed the plaintiff's damages at $7,250.00. The demurrer to evidence sets out all the evidence in the case. So the case stood until the 29th day of June, 1878, when the court decided against the defendant on its demurrer to the evidence, and rendered judgment against it for the amount of damages assessed by the last jury, to wit, the sum of $7,-250.00 with interest thereon from the 16th day of December, 1876, the date of the verdict.

To this judgment a writ of error and supersedeas was granted by this Court.

It is insisted by counsel for plaintiff in error, that the demurrer to the declaration should have been sustained. The declaration alleged, that the plaintiff was injured by the carelessness and negligence of the defendant. If this was proved, he had a right to recover, unless the negligence of the plaintiff was the proximate cause of the injury. There is much useless verbiage in the declaration; but it contains enough, if proved, to sustain the plaintiff's action.

It is insisted, that the declaration ought to have alleged, that the plaintiff when injured was in the exercise of ordinary care. This was wholly unnecessary, because if the plaintiff's want of ordinary care, or his contributory negligence, was the proximate cause of the injury, it was purely a matter of defence and need not be alleged in the declaration, the burden of proof of such negligence being on the defendant. Snyder v. Pittsburg, Cincinnati and St. Louis Railway Company, 11 W. Va. 14; Sheff et ux. v. City of Huntington, 16 W. Va. 307. The demurrer to the declaration was properly overruled.

Did the court decide rightly upon the demurrer to evidence? The rule, that must govern this Court in reversing a judgment upon demurrer to evidence, is well settled. The demurrant must be considered as admitting all, that can reasonably be inferred by a jury from the evidence given by the other party, and as waiving all the evidence on his part, which contradicts that of the other party as well as all inferences from his own evidence, which do not necessarily flow from it. Muh/eman v. National Insurance Company, 6 W. Va. 508; Miller v. Insurance Company, 8 W. Va. 515; McGraw v. Baltimore and Ohio Railroad Company, supra; Richmond and Danville Railroad, Company v. Anderson, adm'r, 31 Gratt. 812; Trout v. Virginia, and Tennessee Railroad Company, 23 Gratt. 619.

Where there is a demurrer to evidence, and the question in the Appellate Court is, whether or not a fact ought to be taken as established by the evidence either directly or inferentially in favor of the demurree, the test is, whether the court would set aside the verdict, had the jury on the evidence found the fact. If the verdict so finding the fact would not be set aside, such fact ought to be considered as established by the evidence demurred to. Ware v. Stephenson, 10 Leigh 155; Richmond & Danville R. R. Co. v. Anderson, adm'r, supra.

From the evidence in this case, there is no doubt, that the plaintiff was entitled to recover, unless his own negligence contributed to the injury. The negligence of the plaintiff, which defeats his recovery, must be a proximate cause of the injury. Blaine v. Chesapeake and OhioR. R. Co., 9 W. Va. 253; Sheff et ux. v. City of Huntington, 16 W. Va 307. To bar the plaintiff from recovery, his alleged act ol negligence must be such, as, he could under the circumstances reasonably anticipate, would result in his injury. Washington v. B. & 0. R. R. Co., 17 W. Va. 190. The terms " negligence "and " ordinary care " are correlative terms. Ordinary care depends on the circumstances of the particular case and is such care, as a person of ordinary prudence under the circumstances would have exercised. Norfolk and Petersburg R. R. Co. v. Ormsby, 27 Gratt. 455. If the defendant has by its own act thrown the plaintiff off his guard and given him good reason to believe, that vigilance was not needed, the lack of such vigilance on the part of the plaintiff is no bar to his claim for damages. Sher. & Red. on Neg. § 28; Pennsylvania R. Co. v. Ogier, 35 Pa. St. 60; Ernst v. Hudson River R. Co., 35 N. Y. 9; Morrissey v. Wiggins Ferry Co., 47 Mo. 521; Clark v. The Eighth Avenue R. Co., 36 N. Y. 135; Newson, adm'x, &c, v. N. Y. Central R. Co., 29 N. Y. 383..

In the last mentioned case Johnson, Judge, in delivering the opinion of the Court said: "The law will never hold it imprudent in any one to act upon the presumption, that another in his conduct will act in accordance with the rights and duties of...