Keathley v. Chesapeake & O. Ry. Co

• Decision Date: 18 November 1919
• Docket Number: (No. 3767.)
• Citation: 102 S.E. 244
• Court: West Virginia Supreme Court
• Parties: KEATHLEY . v. CHESAPEAKE & O. RY. CO.

102 S.E. 244

KEATHLEY .

v.CHESAPEAKE & O. RY. CO.

(No. 3767.)

Supreme Court of Appeals of West Virginia.

Nov. 18, 1919.

Rehearing Denied March 24, 1920.

(Syllabus by the Court.)

Error to Circuit Court, Cabell County.

Action by James K. Keathley against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

B. Randolph Bias, of Williamson, for defendant in error.

Fitzpatrick, Campbell, Brown & Davis, of Huntington, for plaintiff in error.

MILLER, P. Defendant complains of the judgment against it in favor of plaintiff for twenty-five thousand dollars, for personal injuries sustained by him, while employed as a brakeman, predicated on the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]).

The first point of attack is that the declaration, in one count, challenged by demurrer, overruled, is insufficient to support the judgment, in that it does not sufficiently aver that plaintiff, at the time of sustaining his injuries, was engaged in interstate commerce. It is averred that defendant was at that time owner and operator of a railroad extending from Newport News, in Virginia, to and through West Virginia, and into the states of'Kentucky and Ohio, with locomotive engines, freight cars, passenger and caboose cars, gasoline motor cars, and other railroad equipment and rolling stock, and was at the same time a common carrier by railroad engaged in commerce between the states of Virginia, West Virginia, Kentucky and Ohio; and that plaintiff at the time of sustaining his injuries was employed as a brakeman for hire on one of defendant's freight trains, known as "Extra 226, " a local freight train running from Handley, West Virginia, to Huntington, West Virginia, and was then and there engaged in commerce between the states aforesaid. It is not contended that the facts averred with respect to defendant are insufficient to show it a common carrier and so engaged in interstate commerce, but that no facts are alleged respecting the employment of plaintiff showing that he when injured was engaged in Interstate commerce. It is contended that in such an action facts showing that at the time of the accident defendant was engaged in interstate commerce must be averred. This is the law. 2 Roberts, Federal Liabilities of Carriers, § 682; Easter v. Virginian Railway Co., 76 W. Va. 383, 86 S. E. 37. The argument is that it is not sufficient simply to aver in connection with the facts averred respecting the defendant, as the declaration does in this case, that plaintiff was working on one of defendant's freight trains, and at the time of his injuries was engaged in interstate commerce. We think the point too refined and technical. The declaration in the Easter Case, which was held good on demurrer, was substantially like the one we have here. The statute itself, Barnes' Federal Code, § 8069, renders a common carrier by railroad, while engaged in commerce between the states, liable in damages to any person suffering injury while he is employed by such carrier in such commerce, resulting in whole or in part from the negligence of any of the officers, agents or employes. We think the declaration satisfies every requirement of the statute, and of the rules of good pleading, as construed by the authorities cited. 2 Roberts, Federal Liabilities of Carrier's, § 689; Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914E, 168; Thornton's Federal Employers' Liability Act (2d Ed.) § 201. We hold the declaration good, and overrule the point of error.

It is next complained that the court should have sustained defendant's motion for a continuance, based on the absence of the witness Waggoner, the fireman on the engine drawing the freight train on whichplaintiff was employed. Both sides had summoned this witness, the defendant on May 4, the plaintiff on May 8, preceding the trial begun June 4, 1918, and both learned about the same time, May 23, that Waggoner was enlisted in the military service. After trying to locate him at one or more of the military camps, in Ohio and Virginia, and to take his deposition, defendant learned a few days before the trial that he was in France or on the way there. On the hearing of the motion It was shown that defendant had Waggoner's statement in writing taken before suit, as to what he professed to know and what defendant expected to prove by him. It was also shown in opposition to the motion that plaintiff himself was in a precarious condition owing to his injuries; that his physicians, also witnesses, and other witnesses for plaintiff, some of them members of the train crews, were liable to be called into the military service of the United States, and their evidence lost to plaintiff, and plaintiff's rights thereby and otherwise prejudiced. But on the face of the showing the court was of opinion to continue the case unless plaintiff's counsel would consent that the written statement of Waggoner might be introduced in evidence in lieu of his deposition, which was agreed to, and over objection of defendant the parties were ruled to trial. On the trial the defendant made use of this ex-parte statement of Waggoner by introducing it as evidence, so that the defendant had the full benefit thereof on the trial, without any opportunity given plaintiff of cross-examination. Inasmuch as there were numerous other eyewitnesses to the accident, including the trainmen, as well situated and as well qualified and competent to testify to the facts as Waggoner, and defendant was given the benefit of his statement, we can not see that defendant was seriously prejudiced by the ruling of the court. It was not shown on this motion that defendant could not prove the same facts by other witnesses, that it expected to prove by Waggoner. The contention was that the place he occupied as fireman on the engine gave him better opportunity to see and observe the occurrences than any other witness. The statute, section 6, chapter 131 (sec. 4910), Code entitles a party to a trial at the next term after an order entered at rules, for an inquiry of damages, has been entered, unless good cause be shown for a continuance. A motion for a continuance is always addressed to the sound discretion of the court, and unless prejudice be shown by its action on such motion, the judgment should not be reversed. Davis & Moore v. Walker, 7 W. Va. 447. In Riddle v. McGinnis, 22 W. Va. 254, it was decided generally that to entitle a party to a continuance on the ground of the absence of a witness, not only must it be shown that due diligence was observed to obtain his presence, but also that the same facts can not be proved by oth er witnesses present, and that the party can not safely go to trial without the absent one. This is the general rule everywhere. 13 C. J. 151, § 61. The affidavit for a continuance in Doane v. Pulp & Lumber Co., 77 W. Va. 454, 87 S. E. 859, cited and relied on by defendant's counsel, fully complied with the requirements of the rule. The evidence on the motion for a continuance in this case does not satisfy these requirements. Besides, as the defendant had the benefit of the ex-parte statement of Waggoner, it could not have been prejudiced by his absence. This point of error is also overruled.

[3-6] The next point of attack is that improper testimony was admitted to defendant's prejudice. The only testimony of this character pointed out is: First, that of the plaintiff and his witnesses, Dean and Clark, trainmen, and one J. L. Conners, who testified in effect thnt there was a custom among the operatives of motor cars, one of which struck plaintiff and did him the injuries complained of, to run them a certain or safe distance behind the trains they happened to be following, and gave their opinions that it was unsafe to operate such cars otherwise; Second, that the witness Heslep, one of the men on the motor car that struck plaintiff, a carpenter in the employ of the defendant company, was permitted to testify that Keathley did not see the approaching motor car. Not only did Heslep so testify, but Keathley stated the same thing, and Waggoner, in his statement introduced by defendant, also said the same thing. Can it be presumed that if plaintiff did see the car, he would have immediately stepped on the track in front of it, to be run over and killed or injured? Besides, how can defendant complain of this evidence, when it introduced the same fact into the record by the statement of Waggoner? Third, that the witness Conners was allowed to testify to the amount of wages Keathley was earning during the last few days he was employed; Fourth, that another witness, Winters, over objection was permitted to testify that other railway companies had adopted rules governing the operation of motor cars, designed to avoid dangers to employes and others, but to offset which defendant was permitted to show by several other witnesses that some railroads operated motor cars without such rules.

Recurring to the first class of testimony, relating to the custom of employes in operating motor cars, Dean says:

"It was the custom to stay far enough behind so that you will not injure yourself or any one else who might step on the track behind the train you are following."

And he gave it as hie opinion that it would require three hundred feet or more. Clark said:

"Yes, there is a custom to keep a safe distance behind the train. What I would call asafe distance would be from three hundred I feet to as far back as you can get behind the train.''

Conners said:

"The practice and custom is from three hundred to five hundred feet following a passenger train. That we are led to believe among ourselves that it has been made a custom by seeing them daily run in that distance."

Plaintiff himself testified:

"The custom and practice of all men operating motor cars, or motor trucks, on the railroad was to stay at a safe...