Gunn v. Ohio River U'd Co.

• Citation: 36 W.Va. 165
• Parties: Gunn v. Ohio River U'd Co.
• Decision Date: 12 February 1892
• Court: Supreme Court of West Virginia

36 W.Va. 165

Gunn

v.Ohio River U'd Co.

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1892.

Decided February 12, 1892.

Juries View by Jury Discretion of the Court.

By section 30, c. 116, Code, "the jury may in any case, at the request of either party, be taken to view the premises or place in question, or any property, matter, or thing relating to the controversy between the parties, when it shall appear to the Court that such view is necessary to a just decision." Held, a motion under this section is peculiarly within the discretion of the trialcourt, and, before its rulings thereon will be disturbed, it must be made clearly manifest that such view was necessary to a just decision, was practicable and the request therefor denied, to the probable injury of the party applying.

Evidence Res Gestae.

Where the form of the question propounded to the witness on the stand indicates, of itself, that it is framed and intended to elicit in reply something said at the time and place of the accident as part of the res gestoe, held, it is error to refuse the question, but the answer should be heard or seen, and then its competency passed upon.

Evidence Juries.

In addition to the facts proved, the jury has the right to use the knowledge and experience common to mankind, and to take into the account all the presumptions which, according to the ordinary course of events or according to the ordinary experience of mankind, arise out of the facts proved.

Evidence Striking Out Evidence Railroad Companies Negligence.

In a case where plaintiff's evidence is competent, and in some fairly appreciable degree tends to show on the part of the railroad company a want of ordinary care in keeping a reasonable outlook ahead for persons and animals, and other obstructions on the track, in front of the moving train, wh ich runs over and kills a child between four and five years old seated on the track in plain view, recognizable as a child by any one using ordinary care and precaution to discover it, and for a distance not less than twice that within which a train can be stopped, held, it is error to withdraw the case from the jury by the method of striking out all the plaintiff's evidence.

5. Evidence.

A case in which the foregoing rules are applied.

Gunn $ Gibbons, J. K Beller, C. E. Hogg and W. E. Belief for plaintiff in error cited Deer. Neg. § 261; 75 Mo. 595; 84 Va, 63 (45 S. E. Rep. 24); 5 S. E. Rep. 577, 578; 58 Ala. 672; 36 Md. 366; Id. 542; 50 Mo. 461; 38111.483; 34 N. Y. 622; 60 Mo. 475; 106 N. C. 404 (11 S. E. Rep. 412); 3 Wood R'y Law § 417 (n. 13); 10 S. E. Rep. 988; 12 S. E. Rep. 77, 78; 10 Ired. 402; 25 Mich. 279; 5 Sneed 524; 52 Tex. 178; 27 Conn. 393; 56 Cal. 513; 52 la. 553; 92 Ill. 245; 5 Hun 479; 62 Cal. 322, 34 Am. & Eng. R'd Cas. 318; 37 Cal. 409; 4 Col. 524; 64 Mo. 430; 3 Gratt. 812; 38 la, 539; 17 Ind. 102; 71 111. 500; 54 Tex. 615; 15 Am. & Eng. R'd Cas. 472; Id. 394; Id. 406; 19 Am. & Eng. R'd Cas. 91; Id. 102; 101 Mass. 455; 56 Ala. 507; 6 Am. & R'd Cas. 11; 19 Id. 96; 8 Am. & Eng. R'd Cas. 65, 69, 81; Id. 306; Id. 314; Id. 360; 4 Am. & Eng. R'd Cas. 562; Id. 372; Id. 574; 28 Am. & Eng.R'd Cas. 565; Id. 597; Id. 514; 2 Am. & Eng. R'd Cas. 16; 13 S. E. Rep. 454; 22 Yt. 214; 17 W. Va 202; Shear. & R. Neg. § 48a.; 57 Pa. St. 172; 16 Neb. 139 (19 N. W. Rep. 623); 21 Wend. 615; Beach, Cont. Neg. § 42; 27 Gratt. 455; 18 Ohio St. 408; 59 Tex. 64; 113 Pa. St. 412 (6 At. Rep. 269); 27 Vt. 214; 28 Conn. 591; 92 Pa. St. 450; 83 Ala. 371 (3 So. Rep. 555); 78 la. 396 (43 K AY. Rep. 264); 17 Wall. 657; 4 Am. & Eng. Ency. Law 88; Whar. Neg. § 312; Pat. R'y Acc. 93; 9 W. Va.*254, p't 12 Syll.; Id. 271, p't 8 Syll; 17 W. Va. 171, p'ts 9, 10 Syll.; 25 W. Va. 578; 26 AY. Va. 455; 30 W. Va. 288; 78 Ga. 603 (3 S. E. Rep. 701); 10 Am. & Eng. R'd Cas. 712; 25 Am. & Eng. R'd Cas. 356; 31 Am. & Eng. R'd Cas. 375; Id. 423; 34 Am. & Eng. R'd Cas. 56; 34 W. Va. 514; Pierce R'ds 143; 1 Am & Eng. R'd Cas. 115; Id. 65; 7 Am. & Eng. R'd Cas. 400; 9 Am. & Eng. R'd Cas. 161; 10 Am. & Eng. R'd Cas. 742; 11 Am. & Eng. R'd Cas. 421; 8 W. Va. 568; Id. 515; 25 W. Va. 570; 30 W. Va. 228; 6 W. Va. 508; 18 W. Va. 579; 29 W. Va. 528; 6 Gratt, 712; 26 W. Va. 116; 12 Grant 717; 17 W. Va. 190; 1 Whar. Ev. § 549; 15 W. Va. 637; 16 Am & Eng. R'd Cas. 580; 34 Am. & Eng. R'd Cas. 127; 28 Am. & Eng. R'd. Cas. 459; 31 Id. 399; 30 Id. 590; 25 Id. 350; 8 Id. 162; 15 Id. 291; 34 W. Va.l; 44 Pa. St. 375; 34 W. Va. 514; 107 K C. 686; 26 W. Va 455; 9 W. Va. 270; 83 Va. 553 (8 S. E. Rep. 251); 13 S. E. Rep. 978-984.

V. B. Archer for appellee cited Pierce R'ds 336; 56 K Y. 562; 60 N". Y. 336; 105 N". Y. 164; Derr. eg. § 261; 75 Mo. 595; 84 Va. 63; Id 498; 96 Mo. 275; 105 K Y. 164; 24 Pac. Rep. 1074; 69 Md. 494; 9 Am. St. Rep. 438; 64 la. 395; 71 Ill. 500; 126 Ill. 416; 112 Ind. 250; 95 Ind. 286; 77 Tex. 179; 10 Col. 493; 34 W. Va. 514; Cool. Torts 659, 660; Add. Torts 953; Whar. lNreg. § 3; 49 Ark. 261; 24 Pac. Rep. 1074; 89 Ala. 313; 69 Md. 494; 84 Ky. 43; 88 Mo. 392; 95 Ind. 288; 27 Kan. 83; 100 Mass. 208; 2 Sher. & Red. Neg. § 484; 47 1ST. W. Rep. 63; 43 Fed. Rep. 862; 64 Miss. 784; 42 Fed. Rep. 441; 84 Ala. 146; 10 So. Rep. 141; 28 Ind. 287; 53 Conn. 461; 64 K II. 220; 99 Pa. St. 301; 95 Pa. St. 398; 10 ISForr. 458; 101 Pa. St. 258; 28 P. F. Sm. 276; 126 Mass. 377; 132 Pa. St. 226; 19 At. Rep. 28; 27 Pac. Rep. 824; 21 At. Rep. 399; 83 Mo. 543; 96 Mo. 275; 35 W. Va. 562; 96 Mo. 275; 81 Pa. St. 366; 63 Mich. 557; 44 Pa. St. 375; 69 Pa. St. 210; 91 Pa. St, 458; 86 Pa. St. 520; 77 Tex. 179; 27 L. R. A. 216; 1 Leigh 216; 15 W. Va. 300; 16 W. Va. 327; 33 W. Va. 526; 12 L. R. A. 554; 151 Mass. 470; 14 Gratt. 470; 4 L. R. A. 126; 8 Am. & Eng. R'd Cas. 280; 10 Id. 776; 6 Id. 8; 31 Id. 376; Id. 427.

Holt, J:

On the 26th day of June, 1890, in the morning, between eight and nine o'clock, in Mason county, three miles below Point Pleasant, on the track of the Ohio River Railroad Company, two little boys, the one named Henry C. Mays, the other named Luela Mays, were accidentally killed by the up-bound passenger train on defendant's railroad. I say "accidentally" in the beginning, once for all; for to suppose that fireman, engineer or any one in conduct of the train did so knowingly or willfully, in the sense of purposely, is, according to the evidence, absurd and entirely out of the case. It was an accident nothing more.

Of those two little brothers, Henry, the only one whose death is before the court in this case, was between four and five years old. Luela was slightly larger, and presumptively a year or more older, but his age does not otherwise appear, nor is his death a matter of concern in this case, except so far as the evidence connects the two, and the killing of the one throws light upon the circumstances attending the killing of the other.

This suit was brought in August, 1890, in the Circuit Court of Mason county, by W. R. Gunn, administrator of the child, Henry C. Mays, deceased, against the Ohio River Railroad Company, for ten thousand dollars damages for the alleged negligence of the defendant in causing the death of the child Henry. The case was matured for hearing. Defendant appeared and pleaded not guilty. A jury was impanelled but, failing to agree, were discharged from rendering a verdict.

On the 11th of May, 1891, the case was again put on trial, and, after plaintiff had introduced all his evidence, on motion of defendant the same was excluded; and the jury, without being permitted to consider any evidence on plaintiff's behalf none was offered by defendant rendered a verdict of not guilty. The plaintiff moved for a new trial. The court refused it. Plaintiff excepted. The court rendered judgment, and the record is now here for review on writ of error allowed plaintiff.

Eleven witnesses were examined by plaintiff. All were near, one of them a passenger on the train, but no one knew anything about the immediate circumstances or cause of the killing, except the fireman on the train, who saw it all, but too late, as it turned out, to prevent it. I here give his testimony, as certified and sent up by the court below:

"Was fireman on the train by which the accident occurred. Saw the children at the time they were hit. Think it was the cylinder struck them. When they were struck they rolled off down into the little culvert or ditch."

Upon cross-examination the witness testified as follows: "As soon as witness saw the children the bell was rung and the whistle sounded the alarm given by witness. To avoid the accident, the air was put on and the engine reversed, and witness did everything he could to stop the train, and everything was done that could be done."

Upon redirect examination said witness further testified: "That witness saw some object on the track. That he did not know what it was. When he was about fifty or seventy yards below where the children were struck, witness had just been putting coal in the fire, and had gone up on his seat-box. Could have seen an object on the road there some three or four or five hundred yards. Could not discern what the object was that far, if as small as decedent, As soon as witness discovered the danger the air was put on and the engine reversed. Witness did not leave anything undone that could be done to avoid the accident, and could not have prevented it after he saw the children. Witness had been shoveling coal, and had just got upon his seat when he saw the children. It was a clear day. Witness did not know whether the engineer in charge of the train was on the lookout or not. He was sitting there. It was his business to look out. It is the duty of the engineer or fireman to look ahead. It is the duty of the fireman to look on one side and the engineer on the other. The children were sitting on the witness's side of the engine. They were sitting right astraddle of the guard-rail. Think cylinder struck larger boy, and the step on witness' side of engine struck smaller boy. They were sitting on left side,...