Hoge v. Ohio River R. Co.

• Decision Date: 21 November 1891
• Citation: 14 S.E. 152,35 W.Va. 562
• Parties: HOGE v. OHIO RIVER R. Co.
• Court: West Virginia Supreme Court

14 S.E. 152

35 W.Va. 562

HOGE v. OHIO RIVER R. Co.

Supreme Court of Appeals of West Virginia.

November 21, 1891

Submitted June 12, 1891.

Syllabus by the Court.

1. In a suit against a railroad company for negligently injuring or killing live-stock on its track, it is not proper for the court to withdraw the decision of the issue from the jury by excluding the plaintiff's evidence, or by directing the jury to find for the defendant, when there is any evidence fairly tending to prove the negligent act of the defendant.

2. But on the other hand, if there is no evidence tending to prove plaintiff's case, then, after all plaintiff's evidence is in, it is not error in the court to instruct the jury, directly or indirectly, to return a verdict for defendant.

3. If the facts are unambiguous, and there is no room for two honest and apparently reasonable conclusions, the court should not be compelled to submit the question to the jury as one in dispute. Johnson v. Railroad Co., 25 W.Va 570.

4. A case in which it is held not to be error in the circuit court in excluding all plaintiff's evidence there being no evidence tending to show negligence on the part of defendant.

Error to circuit court, Wetzel county.

Action of trespass on the case by W. V. Hoge against the Ohio River Railroad Company. Verdict for defendant by direction, and judgment entered on the verdict. Plaintiff brings error. Affirmed.

J. E McKennan, for plaintiff in error.

V. B. Archer, for defendant in error.

HOLT, J.

This is an action of trespass on the case brought on November 30 1889, in the circuit court of Wetzel county, by W. V. Hoge against the Ohio River Railroad Company. After the conclusion of the evidence of plaintiff, the court, on motion of defendant, excluded the same from the jury on the ground that it was insufficient to sustain the issue on his part, and thereby directed the jury to render a verdict in favor of defendant, which was done, and the court gave final judgment for defendant, and plaintiff has brought the cause here on writ of error to such judgment. It would answer no useful purpose to set out or comment in detail on plaintiff's evidence. We are of opinion that plaintiff's evidence does not in any degree tend to prove negligence on the part of defendant in killing the colt in plaintiff's declaration mentioned. The declaration contains two counts, the first of which is as follows: "William V. Hoge complains of the Ohio River Railroad Company, a corporation organized and existing under the laws of the state of West Virginia, which has been summoned to answer said plaintiff of a plea of trespass on the case; and thereupon the said plaintiff says that heretofore, to-wit, on the 8th day of October, 1888, in said county of Wetzel, the said defendant owned a certain railway track, and ran and operated certain locomotive engines and cars thereon, and on the day and year last aforesaid, at said county, by its servants, negligently ran one of its said locomotive engines upon and against a certain colt, which then belonged to the plaintiff, of great value, to-wit, of the value of $250, which was then lawfully on the said railway track of the defendant, and killed the said colt. *** And the defendant being duly summoned and not appearing, on motion of the plaintiff, by his attorney, it is ordered that judgment be entered." Defendant demurred to the declaration and to each count, but the court overruled the same, and we think properly; the first count especially being quite brief, and yet containing all essential averments by adding to it the proper conclusion. But the court during the progress of the trial refused to permit plaintiff to ask his witnesses certain questions, and to give in evidence a certain ex parte plat alleged by him to be a plat of the railroad near Proctor station, a point on the railroad about 220 yards below where the colt was killed by the train. It is common, and not improper, for a witness in such cases to make a diagram or map for the jury in order to give them a better understanding of the place of which the witness speaks, or to use one he has made for the purpose, or one he knows to be correct; but generally ex parte maps are not of themselves admissible, and can only be used under the circumstances and in the supplementary and ancillary way mentioned above,--that is, to go with and explain the testimony of the particular witness. Besides, the ex parte map could only show, at best, that where the colt was killed was a dangerous place to horses running at large and wandering into it, and upon that part of the track, passing through another man's land.

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