Howard v. Virginian Ry. Co.
| Decision Date | 26 October 1926 |
| Docket Number | 5622. |
| Citation | 135 S.E. 386,102 W.Va. 432 |
| Parties | HOWARD v. VIRGINIAN RY. CO. |
| Court | West Virginia Supreme Court |
Submitted October 19, 1926.
Syllabus by the Court.
An instruction which submits a question of law for jury determination is erroneous.
Where a motion is made to set aside a verdict on the ground, among others, that erroneous instructions were given, and it appears that a binding instruction was given which submitted to the jury a question of law on a controlling issue, the appellate court will not disturb the order setting aside the verdict.
Error to Circuit Court, Mercer County.
Action by Ellen Howard against the Virginian Railway Company. The trial court set aside a verdict for plaintiff and granted a new trial, and plaintiff brings error. Affirmed.
Walter Burton, of Matoaka, and W. H. Malcolm, of Princeton, for plaintiff in error.
Brown Jackson & Knight, of Charleston, Williams, Loyall & Tunstall of Norfolk, Va., Harry C. Ellett, of Princeton, and Martin & Wingfield, of Roanoke, Va., for defendant in error.
Ellen Howard, plaintiff below and plaintiff in error, obtained a verdict against defendant railroad company for $300.25 as damages to her health and for physical pain and anguish caused by defendant's servants in killing and burying a cow on her husband's lot, where she resides, and within her sight and hearing. The court set aside the verdict and granted a new trial, and she here complains of the court's action in so doing, by this writ.
In her declaration she says that defendant's train struck a cow and knocked it down the railroad embankment into her yard and defendant negligently and carelessly left it there in a dying condition within her sight for 24 hours, and then without her consent came into the yard and negligently and carelessly killed the cow and buried it on her husband's premises in her presence and within her sight and she, being a weak and nervous woman, easily scared and excited, was by said acts of defendant shocked, scared, became ill, suffered mental and physical pain and anguish, and continued to be sick for seven months, wherefore she has been damaged $10,000.
Upon the issue of not guilty, the parties went to proof, and upon instructions and argument of counsel the jury returned the verdict. The motion to set aside the verdict was because the verdict was contrary to the law and evidence, introduction of improper evidence, refusal of proper evidence, and in the giving and refusing of instructions. It appears that when the husband came from his work, late in the afternoon, after the cow was knocked down the embankment, he asked a nearby telegraph operator to notify defendant to take the cow off his premises. Early the next morning the section foreman and workmen came to do so, and finding the cow with her legs broken, and mangled and about dead, struck her on the head with a hammer and killed her, without breaking the skin on her head.
The striking and killing of the cow, which plaintiff says she witnessed, caused her pain and weakness, and from then, according to her story, she became ill. A month before she had given birth to a child, and during her childbed illness, an unusual flood came, causing her removal from the dwelling. She experienced no ill effects from the flood, but, being a naturally weak and nervous woman for many years previous, and not having fully recovered her usual strength incident to the birth of the child, the killing of the cow caused her pain and anguish and mental and physical suffering, from which she remained ill for many months. Such was her evidence.
The section foreman says he saw no one present, except the men with him, when he struck the cow with the hammer, and, after having put her out of her misery, he went around to the porch, where he found plaintiff, and obtained permission from her to bury, and he did bury, the cow on the...
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