Looney v. Norfolk & W. Ry. Co
| Decision Date | 01 June 1926 |
| Docket Number | (No. 5583.) |
| Court | West Virginia Supreme Court |
| Parties | LOONEY v. NORFOLK & W. RY. CO. |
LOONEY
v.
NORFOLK & W. RY. CO.
(No. 5583.)
Supreme Court of Appeals of West Virginia.
June 1, 1926.
Rehearing Denied Nov. 12, 1926.
Error to Circuit Court, Mingo County.
Action by Sirrilda Looney, administratrix of George Oscar Looney, deceased, against the Norfolk & Western Railway Company Judgment for plaintiff, and defendant brings error. Affirmed.
P. M. Rivinus, of Philadelphia, Pa., and j Holt, Duncan & Holt, of Huntington, for plaintiff in error.
James Damron, Randolph Bias, and Ira J. Partlow, all of Williamson, for defendant in error.
MILLER, J. This action was instituted by plaintiff for the wrongful death of her husband, George Oscar Looney, under section 80C9, Barnes' Federal Code, 35 Stat. 65 (U. S. Comp. St. § 8657), for the benefit of herself as his surviving widow and their two infant children, George Oscar Looney, Jr., and Irwin Wilson Looney, aged respectively 5 and 2 years, laying the damages at $100,000.00.
On the trial, on a plea of not guilty, the jury returned a verdict for $53,750.00, upon which the circuit court pronounced the judgment now before us for review. After verdict, defendant moved the court to set it aside and award it a new trial, basing the motion on two grounds, viz.: First; that it was contrary to the law and the evidence; and, second, that it was excessive in amount; which motion the court took time to consider. At a later day, and before the court had announced its conclusion on the motion for a new trial, defendant by writing undertook to state as grounds for its motion, in addition to the two first named, the following, viz.: (1) The said verdict is contrary to the law of assumption of risk, applicable to the evidence in the case, and by said verdict the defendant is, therefore, deprived of a right, privilege and immunity claimed by it; under the Act of Congress and Amendments thereof, commonly known as the federal Employers' Liability Act, under which this action was brought. (2) The court erred upon the trial of said action in giving to the jury instructions contrary to the federal Employ-
[135 S.E. 264]ers' Liability Act. (3) The court erred upon the trial of said action in giving plaintiff's instructions No. 1, No. 2 and No. 3. (4) The court erred upon the trial of said action in refusing to give proper instructions offered by defendant. (5) The court erred upon the trial of said action in the admission of improper testimony offered by the plaintiff. (6) For other reasons to be hereafter assigned at bar. The court overruled the motion, and entered judgment for plaintiff for the full amount of the verdict.
On the hearing here counsel for defendant, in their petition for a writ of error and in their oral argument, in enumerating the errors relied on for reversal, say that the court below erred in refusing to grant the defendant a peremptory instruction, because, as they contend, the undisputed evidence, both for plaintiff and defendant, shows that plaintiff's decedent, with full knowledge and perfect appreciation of the dangerous condition of the tipple, voluntarily continued to pass through the same without complaint or notice to the railway company, and in doing so assumed the risk. A proper answer to this proposition, we think, is, first, that no such peremptory instruction was requested, and, second, that the court did, by defendant's instructions Nos. 1 and 3, as properly modified, fairly submit to the jury the question of Looney's assumption of risk, if they should find from the evidence that he knew of the location of the car retarder mentioned in the evidence and knew and appreciated the risks and dangers incident thereto, or that such risks and dangers were so apparent that an ordinarily prudent person in the exercise of ordinary care would not have continued to work, and that with such knowledge he continued to operate his engine along and under such dangerous instrumentality, they should find for the defendant. The evidence did not, in our opinion, justify such a peremptory instruction, and as the modified instructions presented to the jury the theory of assumed risk, defendant was deprived of no right pertaining to that theory of defense, and that that ground for reversal is wholly without merit. A party can not properly complain on writ of error of an adverse ruling when no such ruling was invoked in any way in the trial court.
Plaintiff's instructions Nos. 1, 2 and 3, complained of but not seriously urged here, we think covered the law of the case on her theory of defendant's negligence in failing to furnish decedent with a reasonably safe place to work. The only thing seriously urged against either of these instructions relates to No. 2, which told the jury in effect, that if they found for plaintiff they should assess her damages at such sum as would compensate the widow and the two children for the pecuniary loss sustained by the death of the decedent, and that their verdict should like wise include such sum as from the evidence would compensate for the conscious pain and suffering of the deceased sustained by him and before his death, such total sum so found by them not to exceed $100,000.00. The Only thing urged against this instruction is that the part underscored practically told the jury that the "bridle was off, " and that they were at liberty to do anything they chose within the $100,000.00, the amount sued for. We do not think this direction was improper. The practice here indulged in has had, if not the approval, at least the denial of reversible error therein, in the following cases. The effect of the direction was simply to limit the jury in its finding to the amount sued for. Keathley v. Ches. & Ohio Ry. Co., S5 W. Va. 173, 102 S. E. 244; N. & W. Ry. Co. v. Earnest, 229 U. S. 114, 33 S. Ct. 654, 57 L. Ed. 1096. And in 2 Robert's Federal Liability of Carriers, § 631, it is said:
"It is not ordinarily error for the trial court in the instruction on the measure of damages to make reference to the amount which plaintiff is suing for as stated in the complaint or declaration."
Besides, in this case, how could the jury have been invited to go beyond proper limitations when the same instruction limited them to compensatory damages and in addition damages commensurate with the conscious pain and suffering of deceased, as stated, and when on this question the parties introduced evidence showing the age and life expectancy of the deceased, the amount which he was earning, and the proportion thereof which he appropriated to the support of his wife and children, supplying the basis for their verdict, which the statute giving the right specifically authorizes? We perceive no error in this instruction. The only case urged against this instruction is Hollinger v. York Railways Co., 225 Pa. 419, 74 A. 344, 17 Ann. Cas. 571.
The questions remaining for our consideration and disposition relate to the merits of plaintiff's case as presented by the pleadings and evidence, and the alleged excessiveness of the verdict of the jury. A question presented on the rejection of a part of the testimony of the witness J. Q. Wright bearing on the subject of deceased's knowledge of the condition of the coal tipple and oar retarder when going under them at the time he received his injuries, will be disposed of in connection with our consideration of the question of his knowledge and his assumption of the risk.
Looney, as the declaration alleges and the evidence shows, was a railroad engineer of experience, and a very careful one in the management of his engine. He was 42 years of age and had been in the employ of the defendant company for many years, most of the time in operating loaded and empty coal cars on the main line from Williamson to
[135 S.E. 265]Cedar, thence across Tug river by means of the Poplar Creek branch to the coal plant of the Majestic Collieries Company, his train being known as the Poplar Creek shifter. His duties consisted of taking away the loaded cars and serving the collieries company with empties from day to day, as the business demanded. The plant of the collieries company was the only one operating on said branch. The tipple where the accident occurred was built over four tracks and was supported by bents or upright posts from 10 to 12 inches square placed upon cement pillars between each of the four tracks, numbered from the hillside toward the creek, as tracks Nos. 1, 2, 3, and 4. Tracks 1 and 4 were used for the delivery of empty cars, which were pushed under and stored on the tracks above the tipple from where they were dropped down for loading. Generally in placing the cars in this manner, the engines were required to go under the tipple and between the posts or bents, between which the clearances were not very ample. Above the tipple the collieries company had a car retarder, so-called, consisting of a wheel or pulley installed on a horizontal shaft, over which ran a cable or belt, all controlled by a lever in the tipple, and used for dropping down and spotting the cars as required for loading them. It was necessary that this car retarder should be installed high enough above and away from the tracks as to furnish sufficient clearance for the engines and cars in passing under the tipple; and with the exception of the occasion on which Looney met his injuries subsequently resulting in his death, the evidence fails to show that any serious accident had ever resulted there to employees of the railway company. In fact just prior to this accident another engine on the same train had passed up and down under the tipple and retarder in safety, as engines and cars had been...
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