Landers v. Ohio River R. Co

Decision Date22 April 1899
CourtWest Virginia Supreme Court

33 S.E. 296
46 W.Va. 492


Supreme Court of Appeals of West Virginia.

April 22, 1899.

Appeal—Review—Statements op Counsel.

In order to authorize this court to revise errors predicated upon the abuse of counsel of the privilege of argument, it should be made to appear that the party asked and was refused an instruction to the jury to disregard the unauthorized statements of the counsel.

Brannon, P., and English, J., dissenting.

(Syllabus by the Court.)

Error to circuit court, Mason county; F. A. Guthrie, Judge.

Action by John Landers, by his next friend, William H. Landers, against the Ohio River Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed by divided court

Rankin Wiley, H. P. Camden, and Chilton, McCorkle & Chilton, for plaintiff in error.

Russell & Webster and C. E. Hogg, for defendant in error.

McWHORTER, J. This was an action for damages for personal injuries to John Landers, an infant, who sued in the circuit court of Mason county by William H. Landers, his next friend, against the Ohio River Railroad Company, in which he laid his damages at $20,000. The case was tried at a special term of said court, held in November, 1895, and a verdict was rendered for plaintiff for $800, upon which judgment was rendered on the 7th day of December, 1895. The declaration contained four counts, to which, and to each count, defendant demurred, which demurrers the court overruled, and which overruling is assigned by the appellant as error; but, as counsel for appellant points out no ground for sustaining it, and does not rely upon it in his brief, and as the declaration seems to be in good form, following In a general way, and as nearly as may be, Hogg, Pl. & Forms, pp. 344-346, and I think sufficiently alleging good cause of action, I see no reason for disturbing the action of the court in overruling the demurrer.

It appears from the record that on the evening of July 17, 1893, at the town of Point Pleasant, in said county, a through freight train of the defendant, containing about 27 cars, came into the yard from the southward, remained a few moments, or a short time, and, as it pulled out on its regular run going north from the station, the plaintiff, a boy or young man of about 17 years of age, who lived with his father, near Pomeroy, Ohio, a few miles above Point Pleasant, and who, in company with a young man, Charles Stanley, had walked down to the latter town that day "in search of work, " and failing to find it, and desiring to return home, having no money to pay his fare, climbed on the train, and stood on the ladder between the cars. Some 18 or 20 others got on at the same time. Plaintiff testifies: That he was standing alone between the cars. "There was a fellow standing there talking to the conductor, and he was standing there talking to him, and I seen him [the conductor] talking and pointing at me, " and the fellow who was talking to the conductor "came right there to me, and kicked me off the train." That the conductor, when pointing towards plaintiff, said something; but plaintiff could not tell what it was on account of the train making so much racket. Says he kicked him in the back, between the shoulders, and that he fell off on the side next the river, and, when he went to get up, saw there was something wrong with his left ankle, tried to get up, and could not. Some fellows came and "packed" him up by the flour mill. Did not know who picked him up. Two doctors came, and pulled around on his foot, and got it to the place as near as they could, bandaged it up, and gave him some medicine to put on it, and Robert Johnson took him to his home, and kept him overnight. The next day was sent up on a boat to Enterprise, and hauled home in an express from there. That after he got home Dr. Shafer treated him, made two visits, dressed his ankle, put salve on it, and bandaged it up again; left salve, and directions how to treat it; put it on a pillow on a chair. Was in the house over three weeks, and over five weeks before he could walk without a crutch; then used a cane. Suffered greatly. Said it pained him very much in cloudy weather, and hurt him so he could not sleep of nights much, and kept a good strong bandage on it all the time. Could not get around as well as before he was hurt. Could not wear boots, nor lace his shoe tight, but had to keep it loose. Says, when the man came to him, he was doing nothing but standing and riding on the train, and he said to him, "You get off of here, you d— s— of a b—, " and whaled away, and kicked him off; that the

[33 S.E. 297]

train was running at right good speed. Dr. E. J. Mossman was called to him, with Dr. Neale. Mossman testifies that they found the large bone broken, and a fracture and dislocation of the ankle joint. The smaller bone on the outer side was driven down over the bones of the ankle; in other words, there seemed to be a jamming of the bones of the ankle joint up between the other two, —the bones of the leg. The ligaments were very much torn by reason of this fracture, —by reason of this break, —and even when he saw it there was considerable swelling. Dr. Mossman was corroborated by Dr. Neale, both of whom testified as to the condition of the Injury at the time of the trial, as did also Dr. L. V. Guthrie, showing that it was still a severe injury, giving more or less trouble, and that it was a permanent injury. Several other physicians also testified as to the condition of the injury at the time of the trial, corroborating the testimony as to the permanency of the injury, and the effect of it in the future of his life. The question is as to the liability of the defendant, and the correctness of the rulings of the court, and whether there is evidence tending to support the verdict of the jury. If the liability is established, the judgment is reasonable enough, and is not complained of as to amount.

Witness William Orr was asked if he saw John Landers on the train that started north that evening, and says: "No; I didn't see him on the train. I saw him when he struck the ground. I saw him when he got off the train. * * * State what took place; what, if anything, you heard Mr. Murray, the conductor, say upon that occasion. Well, when I saw the train there, I went to get on the train to go to Mason City, and Mr. Murray hallooed to get off there. I got off. He said, 'Kick them s— s of b— s off.' I don't know who he meant. He didn't mean me, for I was already off. I looked up the track there, and I seen this man coming out. I seen him come out tumbling over, it looked like to me. I run to him, "—and states: After the command was given, he saw a man he thought was a brakeman, who had been helping to do the work in the yard, come up, and it looked to him like he got his foot down this way, and kicked. Saw his foot go through the car. The man was on the car right above the man who tumbled out. Witness was on the ground about two car lengths from Murray when he made the remark. Witness thinks he saw the man who did the kicking going south that morning, but may be mistaken. Saw him come in on the train from the south, and, after he did the kicking, saw him going north on the train. Thinks the train was moving six or eight miles an hour. Two others jumped off when witness did, when Murray "hallooed" to get off. Ed. Wright, witness, was firing at Equity Mill. Was standing in the engine room at the mill, and saw a man coming from the engine to the rear of the train. He stepped across to the coupling of the cars. Didn't see the man that he kicked. He took hold of the brake with his left hand, and reached back, and kicked, and saw the boy come out, and he came out like a bird, too. It was the plaintiff. 'After filling the furnace, went to the boy, who was lying there, holding his leg up with his hand. Train was going six to eight miles an hour. Robert Adkins saw the train going up; saw a couple of fellows on the train; did not know exactly, at the time, that one of them was John Landers; was standing within about 15 feet of Murray, who was talking to a fellow, with light clothes on, on the train, on an oil tank, and the fellow stepped off from him, about two or three steps, and he pointed out towards this fellow, whose head and neck was sticking over the box car, and he hallooed out, and said, "Kick that G— d— s— of a b— off there." When Murray gave the order, he ran out on the cars, and kicked this fellow off. John Eads says William Murray was conductor on the train. Witness was standing on the ground, could not tell how close to the car on which the conductor was, but in hearing distance, and heard the conductor say to the fellow with light clothes on, "Kick that s— of a b— off between the cars." The man went between the cars, and John Landers came out on the side towards witness. When the train passed, witness went to him. A crowd gathered around him. Drs. Mossman and Neale came and examined his leg.

William Murray, who is admitted and proved by both parties to have been conductor of the train, is introduced by appellant as a witness, and denies that he gave orders to kick plaintiff off the train, or to put any person off, or that he made any such remark as is attributed to him by several of appellee's witnesses, who claim to have been near to him, and heard him direct that they be kicked off, and says he knew nothing of any person being put off the train in the yards at Point Pleasant, or above the yards, until he got to Camden, some miles above. James Sharp-neck says he was front brakeman on the train; that the train was moving six or eight miles an hour; that he kicked no person off. and did not tell any one to put anybody off. J. R. Cawley was brakeman on rear of the train, and heard Conductor Murray, while standing on the ground, tell some fellows, while pulling out of the side track, that he wanted them hobos to stay off the train, or keep off, or something of that kind. The witness was also...

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