Layne v. Chesapeake & O. Ry. Co.

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER, J.
Citation67 S.E. 1103,66 W.Va. 607
Decision Date23 November 1909

Submitted June 11, 1908.

Rehearing Denied May 18, 1910.

Syllabus by the Court.

Bills of exception may be signed, certified and made a part of the record of a trial, at any time within 30 days after the adjournment of the term at which the judgment in the action was rendered, either in vacation or in a special or regular subsequent term of the court, occurring within said period of 30 days.

The office of the phrase "in vacation" in the clause of section 3979, Code 1906, authorizing the taking of bills of exception after adjournment of the term at which judgment is rendered, is to empower the judge to sign, certify and make such bills parts of the record in vacation, not to limit or cut down the extension of time, impliedly granted for that purpose.

A special officer, appointed by the Governor for police duty at the instance of a railway company, under the authority conferred upon him by section 31, c. 145, of the Code, is prima facie a public officer, for whose act the company procuring his appointment and paying him for his services directly or indirectly, is not liable.

Such a special officer has all the powers and privileges of a duly elected or appointed constable in the counties in which he files the oath taken by him, or copies thereof, and his public functions and powers are therefore more extensive than those of railway conductors, who are conservators of the peace only while in charge of their trains.

A public officer, specially employed by a common carrier to perform certain duties and services for it, is a servant of such carrier, while acting within the scope of such employment; and, if such servant, in the performance of such duties, wrongfully inflict injury upon a passenger of such carrier, the master is liable therefor, although the injurious act, so done, was willful and malicious, and prompted by motives and purposes personal to the servant, such as resentment of insults or punishment for other wrongs perpetrated upon himself.

When the capacity in which a person, occupying the dual position of public officer and servant of a carrier of passengers acted in a transaction in which he inflicts wrong and injury upon third persons is uncertain and dependent upon conflicting oral testimony and inconclusive facts and circumstances, the question is one for jury determination.

If the injured party is a passenger of such carrier, and the officer acted, in the transaction in which the injury was suffered, in the capacity of servant of the carrier, the question of liability is determined by the legal principles applicable in cases of injury to passengers by ordinary servants of carriers.

A carrier of passengers is under an absolute contractual duty to protect them from willful and unlawful injury at the hands of its servants.

Provocation on the part of a passenger, such as interference with the servants in the exercise of their functions, abusive language, threats and assaults upon servants, although justifying expulsion from the train or other vehicle of carriage, does not bar recovery for injury inflicted upon him by the exercise of more force than is actually or apparently necessary to repel the assault or prevent other threatened injury.

A passenger does not cease to be such by reason of his alighting from a railway train at a station, other than his point of destination, for exercise or from motives of curiosity or to engage in an altercation with a servant of the company, if he does not leave the premises of the carrier, nor the train, with intention not to return to it and resume his journey.

In a case in which the person, inflicting injury upon a passenger, is both a public officer and a servant of the carrier, and his status as such officer has been established by one mode of appointment or election, it is not reversible error to exclude evidence of appointment or election to the same office, or an office carrying the same power and authority, by another mode of conferring title, since no injury or prejudice could result from such error.

If in the trial of such a case, the capacity in which such person acted is uncertain and dependent upon oral testimony and inconclusive facts and circumstances, the proper inquiry for the jury is the capacity in which he acted in the particular transaction to which the infliction of the injury was incident, not the places or positions he held or occupied in general at the time, and instructions, telling the jury to find for the defendant, if they believe the actor was, at the time of the injury, a public officer, or performing the duties of such officer, and that the defendant is not responsible for his acts as such officer, are calculated to becloud the issue and mislead the jury, for which reason, the trial court may properly reject them.

The trial court may properly reject an instruction, in such a case, which tells the jury they should find for the defendant, if they believe the actor was the servant of the defendant, and that the injurious act, incident to the particular transaction in which he was engaged, was not within the scope of his duty as such servant.

In such case, an instruction which tells the jury the defendant is not responsible for the infliction of death on a passenger, if they find from the evidence that the assault was committed by the actor when he was acting for himself and his own master, is calculated to mislead the jury, and the trial court may properly refuse it.

The trial court may properly refuse, in such case, instructions telling the jury that, if the passenger left the defendant's train for the purpose of engaging in a quarrel or altercation with the servant or officer by whom he was killed, the carrier is not liable.

The trial court may properly reject an instruction which assumes the existence of a thing which the evidence makes an open question for the jury.

The trial court has discretion to refuse to permit the elicitation of evidence on the cross-examination of a witness that ought to be introduced by calling the witness to testify on behalf of the party seeking such evidence.

The trial court has discretion to permit the asking of a leading question, when there is a basis for such action in evasiveness or reluctancy on the part of a witness, and a new trial will not be granted for allowing such question to be propounded, when it does not appear that the discretionary power has been abused to the injury of the party complaining.

Error to Circuit Court, Kanawha County.

Action by J. C. Layne, administrator of the estate of Robert A. Layne, deceased, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Simms, Enslow, Fitzpatrick & Baker, for plaintiff in error.

A. M. Belcher, H. O. Middleton, and Charles Curry, for defendant in error.


J. C. Layne, administrator of the estate of Robert A. Layne, deceased, recovered a judgment against the Chesapeake & Ohio Railway Company, in the circuit court of Kanawha county, for the sum of $8,000; the declaration being predicated on the wrongful death of the deceased, caused by the defendant.

The bills of exception having been taken within 30 days after the adjournment of the term at which the judgment was rendered, pursuant to an order allowing the statutory period for obtaining the same, but, at special terms subsequently held within said period, and not in the actual vacation of the court, a motion to dismiss for want of bills of exception, making the evidence a part of the record, raises an inquiry as to whether the instructions and evidence, rulings on which are the principal subjects of complaint, are parts of the record. As to whether the latter clause of section 3979, Code 1906, allowing time for making up, signing and certifying bills of exception, after adjournment of the term, requires these things to be done in vacation as well as within 30 days, in strict compliance with the letter thereof, or within the period of 30 days, let it be within a vacation or not, has never been decided by this court.

The clause has been interpreted in respect to the lapse of time. Bills of exception must be taken within the period of 30 days, and cannot legally be taken later. Crowe v Charlestown, 62 W.Va. 91, 57 S.E. 330; Jordan v. Jordan, 48 W.Va. 600, 37 S.E. 556; Jones v. Harmer, 60 W.Va. 479, 55 S.E. 657; Wells v. Smith, 49 W.Va. 79, 38 S.E. 547; Bank v. Wetzel, 58 W.Va. 1, 50 S.E. 886, 70 L.R.A. 305. Practically all other decisions of this court, relating to the sufficiency of bills of exception, involve questions other than the application of the statute or its interpretation. In requiring obedience to the time limit, we do not construe it. Being perfectly plain and unequivocal as to that, it is not susceptible of construction. We merely enforce it. It is said we have applied the rule of strict construction to it, but we find no evidence of this in any of the decisions. It is a remedial statute and falls under the liberal rule of construction, giving effect to the spirit, intent and purpose more than to the letter. We have said the Legislature intended by it to extend the time for the allowance of bills of exception. That is its purport. In saying this, we have not gone beyond its terms, and hence have not construed it. The observation expresses the impression produced by the mere reading thereof. Extension of time is the substance of it. It contemplates nothing else. That is its main object. Was the phrase "in vacation" intended as a limit upon the time granted? This depends partly on the sense in which it was used. No trial court holds more than three or four...

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