Hawker v. The B. &. q. R. R. Co.

• Decision Date: 08 November 1879
• Citation: 15 W.Va. 628
• Court: West Virginia Supreme Court
• Parties: Hawker v. The B. &. q. R. R. Co.

15 W.Va. 628

Hawker

v.The B. &. q. R. R. Co.

Supreme Court of Appeals of West Virginia.

Decided November 8, 1879.

1 A declaration against a railroad company for negligently and wrongfully killing the plaintiff's cattle on its track need not state the acts of omission or commission which constit uted the negligence and wrong.

2. If however the declaration avers that the injury to the cattle was caused "solely by the negligence and carelessness of the defendant, in this, that the said defendant seeing the plaintiff's cattle on the track carelessly and wrongfully drove its locomotive on them, '' the plaintiff cannot under such a declaration recover, if the evidence shows that the defendant's servants were guilty of no wrong or carelessness after the cattle were seen on the railroad, though they may have been guilty of such carelessness before they were seen; and it would be error in the court to give an instruction' which would probably mislead the jury to believe that they might render a verdict for the plaintiff based on the defendant's carelessness before the cattle were seen on the track.

3. If the killing of the cattle on the railroad track were under the circumstances an inevitable accident, the railroad company is not responsible therefor, though the engineer used no precaution, such as blowing the whistle or doing any thing else. If no precaution could possibly under the circumstances have avoided the accident, the failure to use any precaution will not render the railroad company liable.

4. The statement of the engineer in charge of the engine which killed the cattle, made an hour after the accident and several hundred yards from where it occurred, though made while he was on the engine, which was off the track, having been thrown from the track as one of the results of the accident, are not competent evidence for the plaintiff in a suit against the company to prove negligence in the company, as they are no part of the res gest 5. In an action for damages the judgment should be for the amount assessed by the jury as damages and interest on this amount from the day the judgment is actually rendered, and not from the first day of the term at which the judgment is rendered.

Writ of error and supersedeas to a judgment of the circuit court of the county of Marion, rendered on the 7th day of May, 1878, in an action of trespass on the case in said court then pending, wherein James Hawker, Jr., was plaintiff, and The Baltimore & Ohio "Railroad Company was defendant, allowed upon the petition of said defendant.

Hon. John Blair Hoge, judge of the third judicial circuit, rendered the judgment complained of.

Green, President, furnishes the following statement of the case:

On February 16, 1876, James Hawker, Jr., instituted in the circuit court of Marion county an action of trespass on the case. The plaintiff's declaration was as follows:

"James Hawker, Jr., the plaintiff in this action, complains of The Baltimore and Ohio Railroad Company, defendant, of a plea of trespass on the case, for that the said defendant, heretofore, to-wit, on the day of 1875, at the county aforesaid, was a corporation, and owned and operated a certain railroad called the Baltimore and Ohio railroad, running from the city of Wheeling through the county aforesaid to the city of Baltimore, and on the said day of, 1875, at the county aforesaid, the said defendant negligently, carelessly and wrongfully caused a train of cars upon its said railroad and under said defendant's control to be propelled and driven with great force in and upon the fat cattle of the plaintiff, whereby three of said fat cattle were instantly killed, and several others were greatly bruised, wounded and injured, without the fault or negligence of the plaintiff, and solely by the said negligence and carelessness of the said defendant in this, that the said defendant seeing the plain- tiff's said fat cattle upon its said railroad, and well knowing that said cattle were upon said railroad without any fault, negligence or carelessness of the plaintiff, the said defendant recklessly, carelessly, negligently and wrongfully propelled and drove its locomotive engine and train of cars upon and over said fat cattle, and not sound the whistle ot said locomotive nor slack the speed of said train of cars, nor use other precaution or means to prevent the injury aforesaid, but, on the contrary, the said defendant did wantonly, carelessly and negligently commit the injury and wrong aforesaid, in manner aforesaid by reason whereof the plaintiff says he is greatly injured (said three cattle which were then and there killed as aforesaid being of the value of $200.00, and the said seven cattle injured and wounded as aforesaid being of the value of $275.00), and hath lost said cattle, and is damaged to the extent of $475.00, and therefore brings this suit, etc."

The defendant demurred to this declaration, and the court overruled the demurrer, and the defendant pleaded not guilty, and issue was joined on this plea, and the jury failing to agree on a verdict were discharged, and in May, 1878, a second jury were sworn to try this issue, and they found a verdict for the plaintiff and assessed his damages at $250.00. The defendant moved for a new trial, which the court overruled, and on May 7, 1878, rendered a judgment for the plaintiff against the defendant for $250.00 with interest thereon from the 18th day of April, 1878, the first day of the term at which said verdict was rendered, and for his costs. The defendant took a bill of exceptions to the overruling of his motion for a new trial; and all the evidence in the case was certified by the judge. The defendant also took a bill of exceptions to the granting and refusing of certain instructions given the jury after all the evidence had been heard, and also a bill of exceptions to the admission by the court of certain evidence offered by the plaintiff. This exception is as follows:

" Be it remembered. That upon the trial of the issue in this cause, after it had been shown that the cattle of the plaintiff had been killed and wounded by a collision with a train of cars owned by the defendant, and that William B. Turner was the engineer on said train at the time of the collision, the plaintiff introduced one J.C. Wood, a witness, and proposed to prove by him a statement made about an hour after the collision, and at some distance therefrom, by a man whom witness saw there on the engine, stationary and off the track, whom he called Turner, and whom he heard others at the time call Turner, and whom he had seen knocking about the engine, and who was dressed as a trainman, and whom he believed to be Turner, but did not know him to be the engineer, in relation to the said collision. The defendant objected to the witness being allowed to give such statement in proof to the jury, because the person making it was not sufficiently identified as the engineer, and because such statement was no part of the res gestce; but its objection was overruled by the court, and the witness permitted to and did state that the man so believed by him to be named Turner, at the time and place referred to, said that he started the cattle about the " watch box," near Mike's mill, and when he struck the first one of the cattle he had to sand, and he thought that they would get off or he Avould knock them off. To which opinion and judgment of the court overruling said objection and permitting said evidence to go to the jury, the defendant, by its counsel, excepted, and now tenders this its bill of exceptions, which it prays may be signed, sealed and made a part of the record of this cause, and the same is accordingly done."

The plaintiff asked for two instructions, which the court granted and which the defendant excepted to. They were as follows:

"1. If the jury believe from the evidence that the cattle, or any of the cattle of the plaintiff mentioned in the declaration, were killed or injured whilst casually upon the defendant's railroad by a locomotive engine and train of cars in charge of the defendant's servants, and if the jury further believe from the evidence that the injury might have been avoided by the exercise of proper and reasonable care and caution on the part of the servants of the defendant in charge of the engine and train, then the jury should find for the plaintiff, and in such case the measure of damages is the sum necessary to indemnify the plaintiff for the loss he sustained by the destruction or injury of his property.

"2. If the jury believe from the evidence that whilst the plaintiff was exercising ordinary care over his cattle mentioned in the declaration, they temporarily escaped from his enclosure without his knowledge, and wandeied upon the defendant's railroad, and being there were killed or injured by a passing train of cars in charge of the defendant's servants, and if they further believe from the evidence that the servants of the defendant in charge of the train did not use due care and caution to avoid the injury, the jury should find for the plaintiff."

The defendant also asked an instruction, which the court refused to grant, and this refusal of the court was excepted to. This instruction was as follows:

"If the jury believe from the evidence that after the engineer, who was running the train which killed and wounded the plaintiff's cattle, did, after he saw the cattle on the track, use the best means to avoid their injury, or if because of the darkness of the night and the curvature of the road he could not see the cattle until his train was so close to said cattle that he could not avoid a collision by stopping the train, and that he did then turn the steam from the 'stop-cock' of the cylinder to frighten them off the track, which his experience had taught him to believe was the best means to frighten them, then they must find for the defendant."

The evidence at the trial, so far as it is deemed important to state it in order to an...