Gunn v. Ohio River R. Co.

• Decision Date: 12 February 1892
• Citation: 14 S.E. 465,36 W.Va. 165
• Parties: GUNN v. OHIO RIVER R. CO.
• Court: West Virginia Supreme Court

14 S.E. 465

36 W.Va. 165

GUNN v. OHIO RIVER R. CO.

Supreme Court of Appeals of West Virginia.

February 12, 1892

Submitted January 18, 1892.

Syllabus by the Court.

1. 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 trial court, and before its ruling 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.

2. Where the form of the question propounded to a 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 gest, held, it is error to refuse the question, but the answer should be heard or seen, and then its competency passed upon.

3. 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.

4. 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 which runs over and kills a child between four and five years old seated on the track in plain view, capable of being recognized to be a child by any one using ordinary care and precaution to discover it, and for a distance not less than twice that required to stop the train in held, it is error to withdraw the case from the jury by the method of striking out all the plaintiff's evidence.

5. A case in which the foregoing rules are applied.

Error to circuit court, Mason county.

Suit by William R. Gunn, administrator of Henry C. Mays, deceased, against the Ohio River Railroad Company to recover damages for the alleged negligence of defendant in causing deceased's death. Verdict for defendant. New trial denied, and judgment entered on the verdict. Plaintiff brings error. Reversed and remanded.

Gunn & Gibbons, John E. Beller, C. E. Hogg, and Wm. E. Beller, for plaintiff in error.

V. B. Archer, for defendant in error.

HOLT, J.

On the 26th day of June, 1890, in the morning, between 8 and 9 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 $10,000 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 impaneled, 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. Thinks it was the cylinder struck them. When they were struck they rolled off down into the little culvert or ditch." And 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." And 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 got 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' 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, facing north. Witness supposed train was running 25 or 30 miles an hour, and it would take something like a hundred yards or over to stop. Train ran about the length of itself past the children before it was stopped, and suppose it was something like a hundred yards after witness saw children until train was stopped."

The accident took place on a small trestle 10 or 12 feet long and 4 1/2 feet high above the bottom of the ditch or small stream which it spanned. It contained about 10 cross-ties, 8 inches broad, 8 1/2 feet long, with the space of about 6 inches between the ties. At the trestle there was a cattle-guard, a fence inclosing the railroad from there going up, but no such fence going down. A public road here ran along the railroad some 50 feet away to the right, going up and going down, to a public crossing 400 yards below the trestle. Four hundred yards below the crossing the up-bound train, having turned a curve, had a straight, level stretch without cuts, with the view wholly unobstructed from there to the trestle. The morning was bright and clear, and the two little boys, if then upon the trestle, could have been seen, and might have been seen, by those whose duty it was, if any, to keep a lookout up the track, for a distance of 600 yards--say 200 yards--below the public crossing; and at a distance could not only be seen as persons on the track, but could be recognized as two small children, as two of the witnesses testify. The father and mother lived 400 yards east of the trestle, and kept one cow, which ran at large, and they were in the habit of sending these two children to drive the cow to the public road at the trestle, and turn her up the road at that point, with directions not to go on the railroad, but to come back home; and they were thus sent by their mother to drive the cow to the road on the morning in question, with instructions to come back at once. They had once before been seen herding the cow near the trestle, and at one time playing on the abutment of the trestle, and the mother had been cautioned on that morning, and before, to keep these two little boys away from the railroad. The passenger train, engine, tender, and two coaches, about 150 feet long, was running at the speed of 25 or 30 miles an hour, 12 to 14 yards a second, and it would require 100 yards to stop it. The evidence of the fireman, as certified, leaves it in some doubt whether or not he saw the children as objects on the track before he saw and recognized them as children. Just before he saw them close at hand he had been shoveling coal. How far back he commenced, or how long he was at it, he does not tell us; but he does tell us that at a distance of 50 or 70 yards, having just gotten upon his seat, he then saw the children. Then, as he says, the bell was rung, the whistle sounded, the air was put on the brakes, the engine reversed, and...