Ketterman v. Dry Fork R. Co

CourtSupreme Court of West Virginia
Writing for the CourtBRANNON
Citation48 W.Va. 606,37 S.E. 683
PartiesKETTERMAN. v. DRY FORK R. CO.
Decision Date21 December 1900

48 W.Va. 606
37 S.E. 683

KETTERMAN.
v.
DRY FORK R. CO.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1900.


BILL OF EXCEPTIONS — SETTLEMENT AND SIGNING — SUMMONS — LIMITATIONS — DIRECTING VERDICT — INJURY TO EMPLOYS — PRIMA FACIE CASE

1. If a bill of exceptions be both signed and certified by the judge within 30 days from the close of a term of court, as it must be, the fact that the certificate of the judge does not reach the clerk or is not recorded by him, within the 30 days, will not vitiate the bill; but the certificate must be recorded in order to make the bill a part of the record.

2. A summons commencing a suit, which is void because it has a wrong return day, is nevertheless effective to bring into being a suit such that its dismissal by the court for that cause will give one year after its dismissal for a new suit, under the statute of limitations.

3. Though questions of negligence and contributory negligence are, ordinarily, questions of fact to be passed upon by a jury, yet, when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict in opposition to it, it may withdraw the case from the consideration of the jury, and direct a verdict. Elliott v. Railway Co., 14 Sup. Ct. 85, 150 U. S. 245, 37 L. Ed. 1068.

4. When, in actions for negligence, the facts are undisputed, and such that all reasonable minds must draw the same conclusions from them, it is the duty of the judge to say if asked, as a matter of law, whether or not they make a case of actionable negligence. In such cases, however, when the facts are in dispute, it is the duty of the judge to submit them to the jury.

5. In actions for negligence, the courts have abrogated the doctrine that a mere scintilla of evidence from which there might be a surmise of negligence is sufficient to carry a case to the jury, and have adopted the more reasonable rule that there is a preliminary ques-

[37 S.E. 684]

tion which the judge must decide, if asked, whether, granting to the testimony all the probative force to which it is entitled, a jury can properly and justifiably infer negligence from the facts proved; for, while negligence is usually an inference from facts, it must be proved, and competent and sufficient evidence is as much required to prove it as to prove any other fact.

6. In all actions founded on negligence, whenever the facts are in dispute or conflicting, or the credibility of witnesses is involved, or the preponderance of evidence, or whenever the facts admitted or not denied are such that fair-minded men might draw different inferences from them, it is a case for the jury, and a case should not be withdrawn from the jury unless the inferences from the facts are so plain as to be a legal conclusion, —so plain that a verdict for the plaintiff would have to be set aside as one rendered through prejudice, passion, or caprice.

7. The mere fact that an accident happens upon a railroad is not alone sufficient, as between employer and employe, to raise a prima facie case of negligence on the part of the railroad company, though it would be in the case of a passenger injured. Where an employe injured by an accident attributes it to defective machinery or appliances, he must prove such defect; he carrying the burden of proof.

(Syllabus by the Court.)

Error to circuit court, Tucker county; John Homer Holt, Judge.

Action by Mary S. Ketterman against the Dry Pork Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

E. D. Talbott, for plaintiff in error.

C.Wood Dailey, for defendant in error.

BRANNON, J. Michael Ketterman and several other section hands working on the Dry Fork Railroad at the close of the day's labor started home upon a hand car of said railroad, and a car, which had just been loaded with lumber, from some cause broke away, ran down a heavy grade, and overtook and collided with the hand car, and killed Ketterman, and his administratrix sued the Dry Fork Railroad Company to recover damages for his death. The court, on motion of the defendant, excluded the plaintiff's evidence, and directed the jury to find a verdict for the defendant, and upon such verdict gave judgment for the defendant.

The defendant claims that we cannot review the case, because the bill of exceptions was not, within 30 days after the close of the term, sent to the clerk, and that the order of the judge certifying the bill of exceptions was not received or recorded by the clerk within that time. That is no matter. So the bill of exceptions is signed within 30 days, it is good; for the transmission of the bill of exceptions and order of the judge are only ministerial acts, as is also the act of recording the order, and section 9, c. 131, Code 1891, does not require such transmission and recordation within any particular time. But the certificate must be recorded to make the bill a part of the record. Craft v. Mann, 40 W. Va. 478, 33 S. E. 260.

The defendant pleaded the statute of lim itations, and the plaintiff replied that she had instituted another action for the same cause, and that it had been dismissed by reason of defect in the summons, which was quashed by the court on motion of the defendant, and that the second action was brought within one year after such dismissal of the first action; and the replication sought to save the second action from limitation under section 19, c. 104, Code, providing that, if an action commenced within time be dismissed for "any cause which could not be pleaded in bar of the action, " another action may be brought within one year after the dismissal of the first action. To this replication the defendant filed a general rejoinder. That rejoinder, traversing the replication, is based by the pleader on the theory that the summons in the first action brought no action Into being, but was a simple nullity, for the reason that the summons bore date 6th of January, 1896, and required the defendant to appear "on the 1st Monday in January next, " and was therefore void, and therefore could not answer for an action, within the meaning of Code, c. 104, § 19. After this summons had been served, the clerk amended it by erasing the word "next, " and inserting in its place the figures "1896." Under section 5, c. 124, Code 1891, the clerk may, in proper cases, amend a summons commencing an action; but I do not think that after service he can so amend it as to change the return day. The circuit court properly quashed the summons. I do not, however, regard the position taken for the defendant, that the summons was so vacant and void as not to originate an action, as sustainable. That summons was voidable, we may say void, for all purposes of the further prosecution of the action, but not to all intents and purposes, as I do not think a judgment upon it would be utterly void, but only voidable. I have no doubt that, for the purpose of saving a second action from the statute of limitations, the summons is to be regarded as legally efficient to bring an action into being. The very object of the statute is to give further time for a second action when the first action is for any cause abortive, —ineffectual for recovery. No matter what was the cause of the first action's failure, no matter how bad the writ, no matter whether you call it void or voidable, it is all sufficient to save the second action. It is within the very reason of the statute. It is just the kind of a trouble for which the statute intended to save the second action. It aids the defendant none to cite Lawrence v. Coal Co., 35 S. E. 925, 47 W. Va. —, holding that a first action, dismissed for failure to file a declaration, will not save a second from the bar of limitation, as that case was a voluntary dismissal by the party, whereas here the fault is the clerk's, and the dismissal the act of the law.

We come now to the question, did the court err in taking the case from the jury by excluding the plaintiff's evidence, and

[37 S.E. 685]

making a peremptory instruction to the jury to find for the defendant? In view of the fact that counsel for the plaintiff severely animadverts upon the action of the court in this ruling, as if unwarranted by law, and in deference to that counsel, who presents the point with confidence, I have taken pains to review the subject to see how far it is sustained by our own decisions and decisions elsewhere. I concede that in years gone by the practice of excluding the plaintiff's evidence from the jury as insufficient to sustain the action, or of directing a verdict for the defendant, which is the same thing, was not used. In my own younger years it struck me, at first blush, as an invasion of the prerogative of a jury; but more mature reflection and examination has brought me, as it must bring others, to the conclusion that it is well sustained in reason and by the most eminent authority. This practice is nowadays in general use. 6 Enc. PI. & Prac. 673. It is a progress or evolution in legal procedure sanctioned by the highest authority; so much so that it is now error to deny the motion in a proper case. Wand-ling v. Straw, 25 W. Va. 692; 6 Enc. PI. & Prac. 690. I may say that Ritz v. City of Wheeling, 45 W. Va. 262, 31 S. E. 993, fairly states the law in stating when the exclusion of the plaintiff's evidence is proper, even in negligence cases. The opinion says: "The case is not one involving credibility of witnesses, or weight of evidence, or the proper Inferences and deductions from evidence, which are matters proper for the consideration of a Jury; for the material facts of the case are undisputed, and the case presents simply the question of law whether, upon the facts, a liability rests on the city. The question is, was the city guilty of negligence? Negligence is, most frequently, a question of mixed law and fact, proper to go before a jury; but, where the facts are such that ordinary men will not differ about their effect in not showing negligence, it becomes a question of...

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113 practice notes
  • State ex rel. Smith v. Bosworth, Nos. 12074
    • United States
    • Supreme Court of West Virginia
    • December 6, 1960
    ...though defective or void, operates to bring into existence the proceeding in which it is issued. Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683; Hogg's Pleading and Forms, Fourth Edition, Chapter 1, Section 15. See also McClung v. Tieche, 126 W.Va. 575, 29 S.E.2d 250; Kee......
  • Hollen v. Linger, No. 12556
    • United States
    • Supreme Court of West Virginia
    • November 29, 1966
    ...Coal Company, 86 W.Va. 249, 103 S.E. 55; Thomas v. Electrical Company, 54 W.Va. 395, 46 S.E. 217; Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683, and the numerous cases cited in the opinions in those Though in most of the cited cases the application of the foregoing princ......
  • Matthews v. Cumberland & Allegheny Gas Co., No. 10541
    • United States
    • Supreme Court of West Virginia
    • July 15, 1953
    ...86 W.Va. 249, 103 S.E. 55; Reilly v. Nicoll, 72 W.Va. 189, 77 S.E. 897, 47 L.R.A., N.S., 1199; Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683; Klinkler v. Wheeling Steel & Iron Company, 43 W.Va. 219, 27 S.E. 237; Raines v. Chesapeake & Ohio Railway Company, 39 W.Va. 50, 1......
  • Costello v. City of Wheeling, No. 11088
    • United States
    • Supreme Court of West Virginia
    • September 9, 1960
    ...86 W.Va. 249, 103 S.E. 55; Reilly v. Nicoll, 72 W.Va. 189, 77 S.E. 897, 47 L.R.A.,N.S., 1199; Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683; Klinkler v. Wheeling Steel and Iron Company, 43 W.Va. 219, 27 S.E. 237; Raines v. Chesapeake and Ohio Railway Company, 39 W.Va. 50......
  • Request a trial to view additional results
113 cases
  • State ex rel. Smith v. Bosworth, Nos. 12074
    • United States
    • Supreme Court of West Virginia
    • December 6, 1960
    ...though defective or void, operates to bring into existence the proceeding in which it is issued. Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683; Hogg's Pleading and Forms, Fourth Edition, Chapter 1, Section 15. See also McClung v. Tieche, 126 W.Va. 575, 29 S.E.2d 250; Kee......
  • Hollen v. Linger, No. 12556
    • United States
    • Supreme Court of West Virginia
    • November 29, 1966
    ...Coal Company, 86 W.Va. 249, 103 S.E. 55; Thomas v. Electrical Company, 54 W.Va. 395, 46 S.E. 217; Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683, and the numerous cases cited in the opinions in those Though in most of the cited cases the application of the foregoing princ......
  • Matthews v. Cumberland & Allegheny Gas Co., No. 10541
    • United States
    • Supreme Court of West Virginia
    • July 15, 1953
    ...86 W.Va. 249, 103 S.E. 55; Reilly v. Nicoll, 72 W.Va. 189, 77 S.E. 897, 47 L.R.A., N.S., 1199; Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683; Klinkler v. Wheeling Steel & Iron Company, 43 W.Va. 219, 27 S.E. 237; Raines v. Chesapeake & Ohio Railway Company, 39 W.Va. 50, 1......
  • Costello v. City of Wheeling, No. 11088
    • United States
    • Supreme Court of West Virginia
    • September 9, 1960
    ...86 W.Va. 249, 103 S.E. 55; Reilly v. Nicoll, 72 W.Va. 189, 77 S.E. 897, 47 L.R.A.,N.S., 1199; Ketterman v. Dry Fork Railroad Company, 48 W.Va. 606, 37 S.E. 683; Klinkler v. Wheeling Steel and Iron Company, 43 W.Va. 219, 27 S.E. 237; Raines v. Chesapeake and Ohio Railway Company, 39 W.Va. 50......
  • Request a trial to view additional results

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