Jones v. The Va.n Ry. Co., (CC 517)

• Decision Date: 16 March 1935
• Docket Number: (CC 517)
• Citation: 116 W.Va. 201
• Parties: J. E. Jones v. The Virginian Railway Company
• Court: West Virginia Supreme Court

116 W.Va. 201

J. E. Jones

v.The Virginian Railway Company

(CC 517)

Supreme Court of Appeals of West Virginia.

Submitted February 19, 1935.

Decided March 16, 1935.

1. Negligence

"There can be no recovery for injury sustained by one in attempting to rescue property in the face of obvious danger such as no reasonably prudent person would, under the cir- cumstances, incur." Foster v. New York Central R. Co., 115 W. Va. 682, 177 S. E. 871.

2. Pleading

It is a general rule that whatever facts are necessary to constitute the cause of action should be directly and distinctly stated in the declaration, and such facts should not be left to be inferred from other facts distinctly alleged therein, and arguments, inferences and matters of law should be excluded.

Certified Case from Circuit Court, Raleigh County.

Action by J. E. Jones against the Virginian Railway Company. A demurrer to the declaration and each count thereof was overruled, and the case was certified for review.

Ruling reversed; demurrer sustained.

Maxwell, Sayre & Bowers, for plaintiff in error. Leroy Alleoach and I. L. Hark, for defendant in error.

Woods, Judge:

This case is here on certificate, the circuit court of Raleigh county having overruled a demurrer to the declaration and each count thereof.

Plaintiff seeks a recovery for personal injuries and damage to his automobile due to having been struck by one of defendant's trains, about 4:30 o'clock, on the morning of October 3, 1931. An hour prior, plaintiff, in an endeavor to avoid collision with another automobile approaching from opposite direction, ran his automobile off the highway, landing on the track over which defendant operated its trains, at a point other than a crossing. The highway was a little higher in elevation than the track, and paralleled the latter at about 20 to 30 feet. The point on the track where plaintiff's car stopped could be seen a distance of 800 yards by trains approaching from either direction. Plaintiff, on seeing one of defendant's trains approaching, left the automobile, which he was endeavoring with the aid of a wrecking truck to extricate from its position of peril, and raw forward on said track, with a blazing newspaper in his hand, for the purpose of attracting defendant's attention, and protecting his automobile from further injury.

The first count, without averring any further facts or any particular duty, charges that the defendant, by its servants and employees "so carelessly, negligently gjid improperly behaved and conducted itself in and about the management and control of said engine and railroad cars" that the train was driven against plaintiff and the latter's automobile. The second and third counts are drawn on the theory that the defendant owed a duty (1) to keep a lookout, and (2) to maintain an adequate light, respectively, for purpose of discovering the presence on the track of the plaintiff and his property.

The averment that the plaintiff was making an effort to prevent injury to his automobile shows that he was fully conversant with the fact that the train was approaching, and in the absence of an averment showing some good reason for not leaving the track, amounts to an admission that he was contributorily negligent and not entitled to recover for injuries to his...