Harrow v.Ohio River R. Co.
| Decision Date | 20 January 1894 |
| Citation | 38 W.Va. 711 |
| Parties | Harrow v. Ohio River R. Co. |
| Court | West Virginia Supreme Court |
The remedy by writ of certiorari, given by chapter 110 of the Code to review the judgment of a justice, is not given as a matter of right, but is awarded by the court or judge for cause on proper case shown.
A railroad company by contract under seal bound itself to make and maintain necessary cattle-guards at the boundary-lines of the premises of PL, which it failed and neglected to do: Its trains running through said premises ifrightened and drove H.\s horse off his premises, through the gap, where the cattle-guard was to be made, into the premises of an adjoining owner, where the track was fenced, whereby and by reason whereof said train struck the horse and caused its death. Held, the railroad company may be sued before a justice, and held liable therefor, as for a wrong, under section 26, c. 50, of the Code.
The summons to commence the suit before the justice may be served upon the freight and passenger agent of the company in the county where the suit is brought, and where such agent resides, according to section 34 of chapter 50.
. 4. Justice oe the Peace Discretion of the Court Attorneyat-Law.
The extent to which counsel may read to the jury from lawbooks sound law relevant to the case on trial, is left largely to the discretion of the trial-judge, subject to review in case of abuse of discretion.
V. B. Archer and W. Miller for plaintiff in error:
I. Injury does not constitute prima facie presumption of negligence. There must be proof of negligence in addition to proof of the injury. 25 W. Va. 571; 27 Vt. 643; 16 111. 451; 30 111.198; 40 la. 33; 14 Ind. 30; 50 Miss. 572; 26 Tex. 604; 42 Miss. 603; 35 Mich. 507; 33 Mo. 309; 4 Jones L. 432; 62 Mo. 562; 8 Xev. Ill; 7 Am. & Eng. R. R. Cas. 588; 7 Am. & Eng. R. R. Cas. 590; 13 Am. & Eng. R. R. Cas. 534.
II. Where cattle come upon the track at a point where the railroad company is not bound by statute to fence, it is not, in the absence of negligence, liable for injuries to them. 26 la. 549; 35 Ind. 515; 42 Ind. 173; 30 111. 451; 72 111. 537; 34 la. 506; 80 111. 72; 40 la. 337; 48 Mo. 558; 72 Ind. 107; 73 Mo. 465; 79 Mo. 196; 79 Mo. 432; 91 Ind. 295; 93 Ind. 254; 94 Ind. 245; 96 Ind. 450; 26 Tex. 604; 37 Ohio 554; 73 Mo. 456; 50 Miss. 572.
III The mere fact of the killing or injury docs not constitute any presumption of negligence; the specific negligent act complained of must be proved by the plain tiff.-9 West O. Rep. 112; 27 Vt. 643; 16 111. 198; 30 111. 451; 40 la. 337; 14 Ind.. 30; 42 Miss. 603; 50 Miss. 572; 35 Mich. 507; 33 Mo. 309; 4 JonesL. (X. Car.) 432-; 8 Xev. lll; 35 la. 191; 78 Ky. 421; 26 Minn. 434; 39 Ark. 413; 40 Ark. 336.
IV. Prima facie case: How overcome.
W. C. Prickitt and W. A. Parsons for defendant in error:
I. Justice did not err in overruling motion to quash returns of service of summons. Code, c. 50, s. 34; 85 Va. 512; 3 S. E. Rep. 123; 22 Am. & Eng. Ency. L. 119-126 and notes; Code, c. 52, s. 20; Id." c. 124, s. 2, 7; 13 S. E. Rep. 1009.
II. Objection to fling complaint properly overruled. Code, c. 50, s. 26, 49, 50; 26 W. Va. 583; 24 W. Va. 399; 30 W. Va. 327; 31 W. Va. 483; 8 W. Va. 63.
III. Justice did not err in permitting plaintiff's attorneys to read to the jury the law as set forth in the opinion of a Court of Appeals. 33 W. Va. 434; 16 S. E. Rep. 819; 4 Utah 46; 83 Ya. 553; 1 Am. Lang. No. 4 p. 41-48. IV. Justice did not err in overruling motion to set aside verdict. 35 W. Va. 438; 14 8. E. Rep. 43; 3 S. E. Rep. 701:; 19 Am. & Eng.Ency. L. 940; Thorn. R'd Fen. 469-471; 100 N. C. 230; 32 8. C. 127; 7 Am. & Eng. Ency. L. 929-933; Thorn. R'd Een. 313-317; 17 W. Va. 210; 32 W. Va. 436.
On the 22d day of January, 1892, plaintiff, J. L. Harrow, Drought suit before a justice in Jackson county against the defendant railroad company for three hundred dollars damages for negligently killing his horse. It was tried by a jury. During the trial defendant saved by bill of exceptions various points, ruled against him The jury found a verdict for the plaintiff for one hundred and thirty seven dollars and seventy eight cents. Defendant moved for a new trial. The justice overruled the motion, and gave judgment. Defendant excepted and had all the evidence certified and then presented its petition to the judge of the Circuit Court for a writ of certiorari to the judgment; but the Circuit Court judge refused the writ, and to such order of refusal this writ of error was obtained.
The defendant assigns as errors the various points saved by it in the action of the justice overruling its various motions.
Error No. |. The justice did not err in overruling defendant's motion to quash the summons it follows the form given in the statute nor in overruling the motion to quash the return of its service, for the return shows service on a freight and passenger agent of defendant residing in the county at the time, no other officer etc., being then found in the county. See Code, c. 50, s. 34. And the agent mentioned in this section by section 20 of chapter 52 is construed to include a depot or station agent in the actual employment of the company residing in the county, wherein the action is brought. See Taylor v. Railroad Co., 35 W. Va. 328 (13 S. E. Rep. 1009).
Error No. 2 is based on the action of the justice in over- ruling defendant's objection to tbe complaint filed by plaintiff. The pleadings in the justice's court are first, the complaint by the plaintiff; second, the answer by the defendant. The complaint shall state, in a plain and direct manner, the facts constituting the cause of action, ami, if more than one cause of action be stated therein, each shall be separately stated and numbered. Such pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended. Either party may except to a pleading of his adversary, when it is not sufficiently explicit to be understood, or if it contains no cause of action or defence. If the justice deem tbe exception well founded, he shall order the pleading to be amended, and, if the party refuse to amend, the defective pleading shall be disregarded. Code, c. 50, s. 50.
There are two counts in plaintiff's complaint. No. 1 states in substance, that defendant so negligently and wrongfully ran and conducted its train that the plaintiff's horse was killed by defendant by such wrongful and negligent running of its train. To this statement, or count, no objection is made.
Count No. 2 states in substance, that defendant by Written contract dated May 25, 1885, bound itself to make necessary cattle-guards at the boundary-lines of plaintiff's said farm, which defendant, though often requested, had neglected and refused to do; that defendant by running its train through plaintiff's farm drove plaintiff's horse from his land, where the cattle-guards ought to have been made, on to the adjoining land, where it was killed by the negligence of defendant in running its train. The objection to this count is that it alleges a breach of contract, and can not be joined with No. 1, which is for a wrong or tort pure and simple. I do not think this exception well taken, and it was properly overruled by the justice. By it the killing of plaintiff's horse is stated to be due in part to the negligence of defendant in not making the cattle-guards, as it had by written contract bound itself to do. And the fact, that it had bound itself by express contract to make the running of its trains through plaintiff's farm safe in this respect to his horses, does not make the breach of it, which is in whole or in part the proximate cause of the killing of this particular horse, any the less a wrong within the meaning of the term as used in that part of chapter 50 of the Code, which relates to the pleadings. See State v. Lambert, 24 W. Va. 399; Poole v. Dilworth, 26 W. Va. 583.
Error No. 3. The counsel for plaintiff in his opening argument before the jury began to read a certain part of the opinion of the court in Layne v. Railway Co., 35 W. Va. 438, 446 (14 S. E. Rep. 123). To this defendant objected, but the justice overruled the objection, and the counsel read from the opinion of the court delivered by Judge Lucas, which states what was decided in the case of Washington v. Railroad Co., 17 W. Va. 190. The law read seems to be good law and relevant to the case in hand and therefore not ground of error. Gregory's Adm'r v. Railroad Co., 37 W. Va. 606 (16 S. E. Rep. 819).
If there was danger of misleading the jury, as there may have been, the defendant should have asked the justice to instruct them as to the different questions presented between the case then on trial before them and the one cited and read from, which was discussed and decided from the standpoint of a motion for a new trial on the ground of want of evidence or insufficient evidence, after a jury had found a verdict. Here nothing was said or read encroaching upon the province of the justice to expound the law, or in defiance of any instruction given; but it was a pertinent point of law from an analogous case, which only needed the qualification already mentioned to make it useful, rather than misleading, amino doubt was intended for the court as well as the jury, as no instruction had been given, and as it is a common practice in this state to give them after the arguments to the jury, as well as before. It is quite obvious that such practice is liable to abuse, but, for the reasons given, I do not think there was any such abuse in this instance. For a discusson of the subject see 1 Thomp. Trials, § 945, et seq.; Com. v. Porter, 10 Mete. (Mass.) 263; Gregory's Adm'r v....
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