Hodge v. Sycamore Coal Co

Citation95 S.E. 808
Decision Date19 March 1918
Docket Number(No. 3432.)
CourtSupreme Court of West Virginia
PartiesHODGE. v. SYCAMORE COAL CO.

95 S.E. 808

HODGE.
v.
SYCAMORE COAL CO.

(No. 3432.)

Supreme Court of Appeals of West Virginia.

March 19, 1918.


Rehearing Denied May 9, 1918.

(Syllabus by the Court.)

Error to Circuit Court, Mingo County.

Action by Eliza Hodge against the Sycamore Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.

S. D. Stokes and W. H. Bronson, both of Williamson, for plaintiff in error.

Russell S. Ritz, of Bluefield, for defendant in error.

WILLIAMS, J. Plaintiff recovered judgment for a personal injury caused by a collision of defendant's hand car or truck on which she was riding with a train of cars, and defendant prosecutes this writ of error.

Defendant is a coal-mining corporation operating a mine on Sycamore creek, a tributary of Tug river, in Mingo county. A spur track extends from the main line of the Norfolk & Western Railway near the mouth of Sycamore creek, up said creek for a distance of about two miles, and is used by the railway company in hauling the coal from defendant's mine. No passenger cars are run over this spur track. By permission of the railway company defendant used a hand car or truck for the purpose of hauling its express matter from the junction with the main line to its mine. The truck had four wheels, was about 30 inches high, With a flat top, 6 by 8 feet, without seats for the accommodation of passengers and without railing on the sides. It was down grade from the mine to the junction, and the car was run down by gravity and hauled back to the mine by a mule. It made two regular trips a week. On the morning of August 17, 1915, plaintiff, her mother, and a number of other persons were riding on the truck down the grade when it collided with a train of empty coal cars being pushed up to the mine by an engine in charge of the railway company's employes, and plaintiff was injured.

[95 S.E. 809]

The defenses to the action are: (1) That plaintiff was not a passenger but was merely a trespasser or, at most, only a licensee, and defendant owed her no duty other than not to willfully injure her; and (2) that, if the relation of carrier and passenger did in fact exist, then defendant was only a private carrier, and was not bound to that high degree of care which the law requires of public carriers, but was bound to use only ordinary or reasonable care, and the evidence does not prove plaintiff's injury was due to a lack of such care.

Respecting the relationship, plaintiff does not contend defendant was a common or public carrier, but does strenuously insist the evidence proves it was a private carrier. There is no evidence that defendant sold tickets or collected fares from persons riding on its truck, but there is ample evidence to establish a general custom of riding on the hand car or truck which existed at the time of the accident and had existed for some time prior thereto, and that this was known to defendant through its general manager and general superintendent. Mr. Patterson, the general manager, admitted he frequently saw persons riding on the car and never objected, and, if he was present, he permitted them to ride, and never at any time forbade any one the privilege of riding on the car. The testimony of Mr. Thomas, defendant's general superintendent of the mine, is of like import. He admits the custom, and says he thinks it had prevailed for a period of two years. Plaintiff testified she saw Mr. Thomas the evening before the accident, and he then agreed with her to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT