Haney v. Pittsburgh
| Decision Date | 06 December 1893 |
| Court | West Virginia Supreme Court |
| Parties | Haney v. Pittsburgh, C, C. & St. L. R'y Co. |
1.Damages Railroad Companies Contributory Negligence. Where a collision is caused by the negligence of the conductor in failing to notice the signals displayed at a station, or by the negligence of the operator at the station in displaying improper signals, and by reason thereof a car collides with another standing on the track, where it had a right to be, with forty or fifty of the railroad section hands on board, and one of them jumps from the car to the ground to avoid the effects of the collision, and in so doing receives an injury which results in his death, he can not be considered guilty of contributory negligence; and the company is liable for the damages thus sustained.
2. Damages Conductor Fellow Servants.
Neither the conductor of the train nor the operator at the station can be regarded as fellow servants of said section hand.
3. Damages Conductor.
A conductor having the entire control and management of a railway train occupies a very different position from the brakeman, the porters, and other subordinates employed. He is in fact, and should be treated as, the vice principal of the corporation, for whose negligence it is responsible to subordinate servants.
4. Damages Contributory Negligence.
If one is placed by the negligence of another in such a position that he is compelled to choose instantly, in the face of grave and apparent peril, between two hazards, and he makes such a choice as a person of ordinary prudence placed in such a position might make, the fact that, if he had chosen the other hazard, he would have escaped injury, is of no importance in determining whether he was guilty of contributory negligence or not.
T. P. Spencer for defendant in error cited 14 Ohio St. 372; 7 Ohio St. 317; 32 (). S. 96; 37 O. S. 065; 5 N. Y. 492; 18N Y. 432; 17 Wall. 559; 37 W. Va 260, and a very recent case of B. § O. R. B. Co. v. Baugh in TJ. & Court.
H. C. Hervey for defendant in error.
I. Rides of R. R. Co. as evidence. 30 W. Va. 798.
II. Fellow servant 28 W. Va. 610; 36 W. Va. 397.
III. Evidence not prejudicial no cause for reversal. 33 W. Va. 30; 33 W. Va. 71; 11 W. Va.' 104; 21 W. Va. 764; 31 W. Va. 842; 26 W. Va. 143.
IV. Contributory negligence. 27 W. Va. 47; 85 Va. 306; Beach Cont. Neg. 42; 83 Ga. 67.
V. Damages. 34 W. Va. 260; Code, c. 103, s. 6; 13 S. E.
VI. Duty of R. R. Co. as to rules. 124 N, Y. 493; 123 N Y. 280; 126 N. Y. 544; 128 N Y. 662. Court will not invade province of jury. 25 W. Va. 570; 17 W. Va 214; 21 W. Va. 224; 26 W. Va. 338; 21 W. Va 741.
VII. Exceptions not properly taken. 31 W. Va. 363; 14 W. Va 157; 26 W. Va. 49; 26 W. Va. 718; 16 W. Va. 522; 31 W. Va. 450; Code, e. 131, s. 9; 16 S. E. Rep. 819; 17 S. E. Rep. 794.
English, President.
Gregory Ilaney, who was employed as a section-hand by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, on the 14th day of January, 1892, was with some thirty or forty other hands, who were in the employ of the same company, on board of a construction train on the railroad of said company at or near Collier's station, in the county of Brooke and state of West Virginia, when another train of cars, which was an extra coal-train, and known as "No. 6," ran into the block in which said first named train was located at a speed of from twelve to fifteen miles per hour, and collided with said first-named train, which is called "No. 3." About the time the collision occurred, several of the workmen jumped from the caboose of No* 3 to the ground, in order to avoid the effects of the collision, and among them was said Gregory ilaney, who in some manner, which is not clearly apparent from the evidence, sustained an injury which resulted in a compound fracture of his leg. The presumption is that it was caused by jumping from the cars, as the evidence shows that the doors of the caboose were wide open, that said Haney was in the caboose immediately before the collision, and he was found, with his leg broken, on the ground near the side of the train immediately after the collision. This injury occurred on the 14th day of January, 1892, and, on the 24th day of February following, said Gregory Haney died from lockjaw, which the physician says was induced by several causes. One was the injury; another was an exceedingly excitable and nervous temperament, and rheumatism.
On the 30th day of August, 1892, Eleanor Haney, who had qualified as administratrix of said Gregory Haney, deceased, brought an action of trespass on the case in the Circuit Court of Brooke county against said railway company, laying the damage at ten thousand dollars, for damage sustained by reason of the death of the said Gregory Haney. The plea of not guilty was interposed, issue was joined thereon, the evidence adduced, certain instructions were asked by both plaintiff and defendant, and the case was submitted to a jury, which resulted in a verdict for the plaintiff of four thousand five hundred dollars; and thereupon the defendant, by its attorneys, moved the court to set aside the verdict, and grant it a new trial, because the same was contrary to the law and the evidence, and the damages found by the jury were excessive; which motion was overruled by the court, and a judgment was rendered on the verdict; and the defendant, by its counsel, excepted, and tendered its bill of exceptions, which was made a part of the record; and from this ruling and judgment of the court this writ of error was obtained.
The first error assigned and relied on by the plaintiff in error is as to the action of the court in allowing rule thirty four, printed on the time card, to be read in evidence to the jury, which rule reds as follows:
Now, in order that railroads may conduct the running of their trains safely and systematically, it is not only necessary that they should adopt rules for the governance of their employes, but, when so adopted and found to be salutary in their effect, they should be adhered to, and the negligence of their employes who have notice of these rides is frequently determined by their willful neglect and disobedience of the same. As to the relevancy of this particular rule, however, which was offered in evidence and objected to, the evidence shows that the accident which resulted in the injury complained of occurred very early in the morning, and also that the morning was foggy: so that the rule was relevant, as showing what was requited to be done by the defendant in running its trains at such a time in the morning, and in weather of that character; and I can not see that the defendant was prejudiced by the introduction of a rule which had been adopted by it manifestly for the protection of its property and the lives of its employes.
It is also assigned as error that the court, permitted rules Nos. 3 and 4 to be read to the jury, although objected to by the defendant, which rules are as follows:
The action of the court in allowing rule 224 to be introduced and read to the jury, against the objection of defendant, is also assigned as error, which rule is as follows:
It seems to me that no valid objection could be sustained to the introduction of these rules. The question is directly raised in the case as to whether the defendant was guilty of negligence in the management of its trains, and, in determining that question, the first question which presents itself is as to whether the officers to whom it has intrusted the management of the trains have complied with the rules prescribed for their governance by the defendant itself, ft is thus we ascertain what said officers are required to do by the directors of the railroad, and, by comparing their conduct as shown by the testimony, we can ascertain whether they have complied with their prescribed duties, or have been negligent in their conduct, and thereby have endangered or destroyed the property and lives of others; and I see no error in allowing said rules to be read to the jury. See Madden''$ Adm'r v. Railway Co., 28 W, Va. 610, fourth point of syllabus, where it was held by this Court that "it is the duty of a railroad company to establish proper' rules and regulations for its service, and, having adopted such rules, to conform to them."
The next error assigned is as to the action of the court in giving to the jury the instruction numbered 1 on behalf of the plaintiff, for the reason that there was no evidence in the case tending to justify the giving of the same. Said instruction No. 1 is as follows:
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