Gregory's Adm'r v. Ohio River R. Co
| Decision Date | 01 February 1893 |
| Citation | 16 S.E. 819,37 W.Va. 606 |
| Parties | GREGORY'S ADM'R v. OHIO RIVER R. CO. |
| Court | West Virginia Supreme Court |
Master and Servant — Negligence op Fellow Servant — Knowledge op Master's Rules — New Trial—Reading Law to Jury by Counsel.
1. A motion for a new trial should indicate, in a way sufficient to call the attention of the court to them, the grounds for such new trial, unless the point has been made the subject of a bill of exceptions. Where it is claimed that evidence has been improperly admitted, and an exception noted, but no bill of exceptions taken, and the record states that the motion for new trial was based on certain specific grounds, not naming the admission of such evidence, that exception will not be considered in the appellate court, but will be treated as waived.
2. A rule of a railroad company will not be binding on its employes unless they have knowledge of it.
8. The test of the liability of a principal or master for the torts of his agent or servant is whether the latter was at the time acting within the scope of his authority in the business of the principal or master, and not whether the act was done in accordance with his instructions. If such act be done within the scope of authority, and while the agent or servant is engaged in his employer's business, the latter is bound for it.
4. Whether counsel, in argument before a jury, shall read law from law books and reported cases, and comment thereon, is within the discretion of the court, subject to review in case of abuse of discretion. If the law read be good law, and relevant to the base, it is clearly not a ground of error. If bad law, or irrelevant to the case, and calculated to mislead the jury, yet, if the court has given instructions correctly stating the law on the subject, it would not be reversible error; but, in the absence of such instructions to counteract the danger; it would be reversible error.
(Syllabus by the Court.)
Error to circuit court, Tyler county.
Action by C. P. Parker, administrator of W. D. Gregory, deceased, against the Ohio River Railroad Company, to recover for the death of plaintiff's decedent. Plaintiff had judgment, and defendant brings error. Reversed.
V. B. Archer, for plaintiff in error.
Etc-iug, Melvin & Riley, for defeudant in error.
Brannon, J. W. D. Gregory was a section hand in the employ of the Ohio River Railroad Company, and was killed by a train on that railroad, and, in an action by his administrator in the circuit court of Tyler county, there was judgment against the company, and it brings the case here.
The first error assigned is that the court overruled a demurrer to the declaration. Its first count alleged, in effect, that the company w&s running a train, and was under duty to run the train with care and circumspection, and that, disregarding its duty, it so carelessly and negligently ran the train that it collided with a hand car, on which said Gregory was lawfully, and with care, proceeding and traveling upon said railroad, whereby he was hurt and wounded, whereby, and by reason of the carelessness and negligence and wrongful conduct of the defendant, he died. It is alleged against this count that it does not show by what right or for what purpose Gregory was upon the hand car; that it is not stated whether he was a passenger or servant, and it does not appear that the defendant owed him any legal duty. Suppose the deceased were a servant, passenger, or even trespasser. If the train was, as charged, carelessly and negligently driven upon him, it would be actionable. Even a trespasser on a track may recover for willful, gross negligence. The allegation of negligence is in general language, without specification of wherein it consisted, as it may be under Hawker v. Railroad Co., 15W.Va. 628; but it charges negligence as the cause of the injury. It is said that the second count is open to the same objection as the first. But it is not, for it expressly alleges that deceased was upon the hand car "by the license, permission, and direction of the defendant, " and was so by its negligence killed. The third count alleges that Gregory was a servant of the defendant, and was negligently, carelessly, and improperly required by it to do certain work upon its railroad, and to proceed and travel upon a hand car of the defendant upon its railroad, and was run over by a train, etc. It is urged that the count ought to state in what employment he was, and ought to specify his duties, so that we may say whether it was a duty to ride upon the hand' car over the road. Wethink this is requiring too great particularity. If he was a servant, and was commanded to labor on the road, and to go in a handcar, is not that enough, without specifying his employment or the character of his labor? The objection to the fourth count is substantially the same as that to the third. This fourth count is the same as the fifth in Criswell v. Railroad Co., 30 W. Va. 798, 6 S. E. Rep. 31, which was approved, and it did not state the service in which the deceased was a servant otherwise than does the count in this case. There is no error in overruling said demurrer.
The next assignment of error is in admitting certain evidence alleged to be inadmissible. The certificate of the evidence given upon the trial shows that the defendant objected to this evidence, that his objection was overruled, and that he excepted, but there is no bill of exceptions taken to the rulings. The motion for a new trial states that the ground on which such new trial was asked was that the verdict was contrary to law and evidence, and the instructions; not specifying the admission of such evidence as a ground for new trial. Now, if a bill of exceptions for the admission of such evidence had been taken, it would both show that the party had not waived the point, and that the judge's attention had been called to review bis action upon the evidence; or, if the motion for new trial had stated that it was based on the improper admission of such evidence, then we might say that the statement in the certificate of evidence that the party objected and excepted to its admission would be sufficient witnout a formal bill of exceptions. But where, as in this instance, the motion for a new trial does specify two other grounds, ignoring this one, mav we not say it is waived? Brown v. Brown, 29 W. Va. 777, 2 S. E. Rep. 808, holds that where exception is taken to the giving or refusing of instructions, or the admission or rejection of evidence, a new trial must be asked, else such exceptions will be regarded as waived. If so, where no bill of exceptions has been taken, ought not the motion for a new trial specify the action of the court in such matters as grounds? Especially where, as in this instance, thatmotion does specify other grounds, is there not reason to say that the exception as to the admission of the evidence is ignored? Trials sometimes last weeks, and the court has ruled on many points of evidence and other things; and, on a motion for a new trial, is he to go overall these things without being asked? Ought not his attem-tion hecalled to these transactions? Fairness to the judge and to the adverse party would require this. In the opinion in Searle v. Railway Co., 32 W. Va. 370, 9 S. E. Rep. 248, and Danks v. Rhodeheaver, 26 W. Va. 284, it seems to bo recognized as law that the motion for a new trial should tell the court on what ground it is asked. In 2 Thomp. Trials, § 2754, it is stated that in many states the practice requires a specification of the reasons or grounds for a new trial; and, as to the admission or exclusion of evidence as a ground, section 2756 states that the motion "must clearly designate or specify, with reasonable certainty, such evidence." 16 Amer. & Eng. Enc. Law, 641. In Indianaeven a specification that the court erred in admitting evidence offered by defendant, objected to by plaintiffs, was held too general. Grant v. Westfall, 57 ind. 121. So in Hoey v. Hoey, 36 Conn. 386, find Edmonds v. State, 34 Ark. 720, such general specifications were held insufficient. Helm v. Coffey, 80 Ky. 176; George v. Jennings, 4 Hun, 66. In Meaux v. Meaux, 81 Ky. 475, under a statute declaring for what grounds a new trial should be granted, the ground assigned was "because of error of law occurring on the trial, " and it was held too general. It seems to me that reason, convenience, and public justice conspire to sanction this rule. But for it a judge would have to retrace his steps, and grope through the infinite matters arising in a long trial, —his thought not being called to review particular subjects, and often failing to review important ones; and thus error is committed, and justice defeated. Rule, and I think proper practice, should require reasonable specification. After a trial is aver, it is not simply a matter of fairness to the judge, but one vitally concerning the administration of justice in avoiding error and appeals, and consequent protraction of litigation, that there should be opportunity to review the points passed upon in the trial. The motion for a new trial affords this opportunity. It is the hnlting place for review. Should not the party complaining of error tell the court what is the error he complains of, unless by bill of exceptions he has already done so? Should he not tell it, at least, that it is in the admission or rejection of certain evidence, —pointing out the evidence? At any rate should he not tell the court, in a general way, that it is for the rejection or admission of evidence, and thus call the court's attention to that head, so that he may go back and review rulings under that head? At any rate, further, should he be allowed to say to the court that he bases his motion oncer-tain specified grounds, —that is, that the verdict is contrary to the evidence and law, and on account of instructions, —never hinting that it is for the admission of improper evidence, which covers many points along the way of...
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