Gregory's Adm'r v. Ohio River R'd Co.

• Decision Date: 01 February 1893
• Citation: 37 W.Va. 606
• Court: West Virginia Supreme Court
• Parties: Gregory's Adm'r v. Ohio River R'd Co.

37 W.Va. 606

Gregory's Adm'r

v.Ohio River R'd Co.

Supreme Court of Appeals of West Virginia.

Submitted June 10, 1891.

Decided February 1, 1893.

New Trial Bile of Exceptions Waiver Evidence.

A motion for anew 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, (p. 009.)

Railroad Companies Master and Servant Employer and Employe.

A rule of a railroad company will not be binding on its employes unless they have knowledge of it. (p. 613.)

Railroad Companies Principal and Agent Master and Servant Employer and Employe.

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. (p. 614.)

Argument of Counsel Discretion of Court Reversal. Whether counsel, in argument before a jury, shall read law from lawbooks 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 case, 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, (p 618.)

V. B. Archer for appellant cited 17 W. Va. 190; 1 Den. 570; 3 Rob. (New) Pr. 580; 1 Chitt. PI. (16th Ed.) 256; 5 W. Va. 10; 30 Gratt. 810; 1 Chitt. PL 406 (note); 11 Price, 235; 1 Saund. PI. & Ev. 510; 30 W. Va. 798, 811, 818; Step. Dig. Ev. 15; Pat. R'y Ac. 420; 1 Greenl. Ev. (13th Ed.) § 52; 32 W. Va. 370; 54 Wis. 208; 58 N Y. 391; 96 1ST. Y. 264; 2. Wash. 281; Hill, New Tr. (2nd Ed.) 407; 2 II. & M. 55; 8 Am. & Eng R'd Cas. 177; 2 Thomp. Neg. 885; 33 N Y. 369; 13 S. W. Rep. 982; 77 Tex. 228; 16 Pac. Rep. 144; 30 N J. L. 460; 53 111. 117; 69 Y. 170; 47 N Y. 274; 19 Wend. 343; 39 N. Y. 381; 5 Munf. 483; 6 Car. & P. 501; 4 Min. Inst. 875 and cas. cited; 3 W. Va. 566; 14 W. Va. 100; 6 W. Va 258; 35 N. W. Rep. 334; 13 N E. Rep. 844; 24 W. Va. 613 and cas. cited; 2 Gratt, 339; 9 Gratt. 501; 29 Gratt, 431; 32 Gratt. 394; 33 W. Va. 434; 27 W. Va 141; 33 W. Va. 438; 15 Gratt. 453; 1 Thomp. Tr. § 941; Id. § 947; 23 111. 357; 11 Mich. 501; 39 N. W. Rep. 861; 72 Cal. 248; Proff. Jur. Tr. § 253; 44 Cal. 70; 26 X. E. Rep. 1048; 10 K E. Rep. 528; 56 Tex. 375; Id. 452; 66 Mich. 277; 101 N. Y. 520; 137 Mass. 243; 17 Am & Eng. R'd Cas. 272; 139 Mass. 587; 41 Ohio St. 338;Id. 388; 14 R. I. 357; 18 Fed. Rep. 239; Id. 243; 45 N. W. Rep. 807; 15 R. I. 95; 4 So. Rep. 333; 65 Am. Dec. 222; 71 Am. Dec. 298; 140 Mass. 245; 122 U. S. 189; 27 W. Va 285, 296; 29 W. Va 98; Wood Mas. & Serv. 326, 328; 26 N. E. Rep. 431; 139 Mass. 580; 83 Va. 375; 86 Va, 390; 45 Mich. 212; 105 N Y. 26; 14 Fed. Rep. 564; 18 Fed. Rep. 282; 23 N. E. Rep. 827; 26 N E, Rep. 994; 60 Md. 395; 51 Md. 47; 41 Md., 298; 32 Md. 420; L. R. 2 Ex. Div. 389; 38 Minn. 117; 61 Tex. 196; 86 Va. 390; 83 Va. 375; 59 Tex. 19; 105 Ind. 151; 79 Me. 397; 70 Ga, 674; 68 Tex. 694; 71 la. 717; 3 Gra. & W. New Tr. 1044; 50 Tex 371; 20 Tex. 794; 7 W. Va. 54; 11 W. Va. 703; 8 Gratt, 637; 22 Gratt. 946; 20 Gratt, 296; 7 Leigh 608; 27 Gratt. 313; 17 W. Va. 562; 29 W. Va. 410; 4 Min. Inst. 758; 11 S. E. Rep. 716.

Ewing, Melvin & Riley for defendant in error cited 30 W. Va. 798; 15 W. Va. 628; 11 W. Va 1; 5 W. Va 10; 20 W. Va 23; 22 W. Va. 780; 4 Min. Inst. 728; 6 W. Va. 364; 32 W. Va. 370, 378; 6 W. Va. 274, 284; 29 Gratt. 431; 32 Gratt, 394; Id. 370; 27 W. Va. 75; Patt, Acc. §§ 107, 108, 109; 131. PL Acc. Cas. 104; Prom Ju. Tr. § 251; Pow. App. Pro. 321, 398; 16 W. Va. 308; 23 W. Va. 229; 12 W. Va. 116; Hill. New Tr. 380; Id. 375; Id. 393; Id. 395; Id. 494.

Brannon, Judge:

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. The first count alleged in effect that the company was 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 travelling 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 that 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 the negligence consisted, as it may be under Hawker v. Railroad Co., 15 W. 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 improp- erly 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. We think this is requiring too great particularity. If he w'as a servant, and was commanded to labor on the road, and to go in a hand-oar, is not that enough, without specifying los 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 CrisweU 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 e-Tor is in admitting certain evidence alleged to be inadmissible. The certificate of the evidence given upon the tnal 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.

Xow, 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 his action upon the evidence; or, if the motion for new tral 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 without 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, may 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

77 giving or refusing of instructions or to the admission or rejection of evidence, a new trial must he 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, that motion 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 newr trial, is it to go over all these things without being asked? Ought not its attention be called to these transactions? Fairness to the judge and to the adverse party requires this.

In the opinion in Searle v. Railway Co., 82 W. Va. 870 (9 S. E. Rep. 248) and Banks v. Rhodeheaver, 26 W. Va. 284, it seems to be 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...