Madden's Adm'r v. C. K O. Ry. Co.

• Decision Date: 30 October 1886
• Citation: 28 W.Va. 610
• Court: West Virginia Supreme Court
• Parties: Madden's Adm'r v. C. k O. Railway Co.

28 W.Va. 610

Madden's Adm'r

v.C. k O. Railway Co.

Supreme Court of Appeals of West Virginia.

Submitted September 14, 1886.

Decided October 30, 1886.

In an action for damages on account of negligence resulting in death it is not necessary, that the plaintift should, under sec. 6, eh. 103, Amended Code, aver in his declaration, that the dece

dent left a wife, children or other next of kin. (p 611.)

2. When a plaintiff offers in evidence to the jury in an action against a railway company certain printed rules of the defendant., to the reading of which it objects, on the ground that said rules were not the rules in force at the time the cause of action arose; and the plaintiff submits evidence which shows prima facie, that said rules were then in force, it is not error for the court to permit said rules together with such evidence to go to the jury. (p. 612.)

3. It is a well established general proposition, that under the common law in America a master is liable to his servant for any neglect ot the master's duty, whether committed by the master himself or by one to whom he has delegated his authority, (p. 616.)

4. It is the duty of a railroad company to establish proper rules and regulations for its service, and having adopted such rules to conform to them. (p. 617.

5. Where an engineer upon one train of a railroad company is injured by the negligence of the conductor of another train of the company running in an opposite direction, or by the fault of one of the company's telegraphic operators in transmitting a telegraphic order to such conductor, such engineer being wholly without fault or the means of preventing such negligence or of avoiding its consequences; sueh engineer is not the fellow-servant of said conductor, nor is he the fellow-servant of said ope rator in regard to acts and telegraphic orders between the operator and said conductor within the rule, which exempts the company from liability for the negligent acts of fellow-servants or persona engaged in the common service, and the company will beheld responsible for an injury to such engineer, caused by the negligence of such conductor or operator in such manner, (p 619.)

J. II. Ferguson for plaintiff in error.

E. Gibson, J. W. St. Clair and T. L. Michie for defendant in error.

Snyder, Judos:

Action of trespass on the case, brought December 6, 1884, in the circuit court of Fayette county by J. F. Doyle, administrator of John J. Madden, deceased, against the Chesapeake & Ohio Railway Company, to recover damages for injuries caused by the negligence of the defendant and which resulted in the death of the plaintiff's intestate. The defendant demurred to the evidence, in which demurrer the plaintiff joined, and under the direction of the court the jury found a verdict fixing the damages of the plaintiff $6,000.00, subject to the opinion of the court on the demurrer. The defendant moved the court to set aside the verdict for the reason that the damages found by it were excessive and not justified by the evidence. The court took time to consider said motion and also what judgment it should render upon the demurrer to the evidence. At a subsequent term, on October 2, 1885, the court, without referring in terms to said motion, decided that the law upon said demurrer was for the plaintiff and gave judgment lor him upon the verdict. The defendant has brought the ease to this Court by writ of error.

The errors assigned are as follows: First, the court erred in overruling the demurrer to the declaration; second, in permitting certain evidence, set out in the defendant's first and second bills of exceptions, to go to the jury; third in finding for the plaintiff on the demurrer to the evidence; and fourth, in giving judgment for the plaintiff without passing upon the defendant's motion to set aside the verdict.

1. In support of the demurrer to the declaration it is claimed that the declaration is not sufficiently certain and definite, that it fails to set out or specify any act of negligence by thedeiendant. or its ageuts, The declaration does aven that the defendant wrongfully, wilfully and negligently caused two trains of cars to be run on its road upon a single tract in opposite directions at a speed of thirty miles an hour, thereby producing a collision of said trains, which caused the injuries that resulted in the death of the plaintiff's intestate. It is therefore plain that the defect thus insisted upon does not in fact exist.

It is further insisted that the declaration is bad, because it does not aver that the intestate left a wife or children. In B. $ 0. R, R. Co. v. Gettle, 3 W. Va. 376, it was held, that, in an action brought, under ch. 98 Acts of 1863, the declaration must aver that the decedent left a widow or next of kin and set forth the names. Since that decision our statute has been materially changed. Ch. 103 sec. 6 Arnd. Code p. 634. It is not required or necessary, under our present statute, that the declaration should contain such averment. B.

Upon a careful consideration of the whole declaration. I think it is sufficient in law, and that the court did not err in overruling the demurrer thereto.

2. It appears from the defendant's first and second bills of exceptions that after two of the plaintiff's witnesses, Terrill and Dickinson, had testified as hereinafter set forth, the plaintiff offered to read to the jury certain printed rules of the defendant, at the head of which were the following words:

"Chesapeake and Ohio Railway; Huntington division; time-table No. 10 to take effect at 12 o'clock, noon, Sunday, May 20, 1883:

(Moving trains by telegraph). The said Terrill testified, that he was in December, 1882, the time the plaintiff's intestate was killed, the telegraph operator and depot agent of the defendant at New Richmond; that at that time in the system then in use letters only were used there were no figures; that we now use what is called the combination system in orders his impression was that the latter system was adopted about twelve months after the accident, or maybe sooner; he did not have a copy of the time-table and general orders in use in December, 1882, and being shown a copy of the rules offered in evidence, he said there might probably be some little change in these rules since 1882. The plaintiff then offered in evidence said printed rules from 149 to 172 inclusive, to the reading of any of which, except 152, the defendant objected, but the court overruled the objection and permitted the said rules to be read to the jury and the defendant excepted.

The witness Dickinson testified that he was baggage master on train No. 4 of the defendant in December, 1882, and had been in the employment of the defendant since* 1877, that he had often seen the printed rules offered in evidence, he recollected the rules under which the trains were running in December, 1882, he had a memorandum of them which he produced and which were the same rules as those offered in evidence. The defendant here objected the reading of this memorandum in evidence, but the court overruled the objection and the defendant again excepted.

It is here contended by the plaintiff in error, that the court erred in permitting these rules to be read in evidence. It is claimed that the title or heading, attached to the memorandum on which these rules appear, shows that the rules were adopted in May, 1883, and were therefore not the rules in operation in December, 1882, when Madden was killed.

It does not seem to me, that such a conclusion necessarily follows. The proper reading and construction of this heading would not necessarily or conclusively indicate that the date had any reference to the rnles. It might refer simply to the date or time at which "time-table No. 10," was to take effect. Without knowing certainly how the fact appeared to the court below, because the original memorandum, or an entire copy of it, is not before us, it is probable that the rules are for convenience printed along with the memorandum containing the time-table, and whenever the timetable is changed or a new one adopted the rules then and before in operation are simply transferred to the new timetable, and thus the date fixed for the time-table to take effect would have no reference to the date at which the rules were adopted or put in force. But however this may be, it seems to me that the evidence offered to show that these were the rules in operation in December, 1882, was sufficient to make a prima facie case that they were such and warranted the court in permitting said evidence and the rules to go to the jury. The defendant could then have offered evidence to show that these were not the rules then in use in rebuttal of said prima facie case. As there was no such evidence offered by the defendant, I think it was proper for both the court and the jury to regard these rules as competent evidence. Edgell v. Conmoay, 24 W. Va. 747. One of the witnesses stated positively that they were the rules in force in December 1882, a, nd while the other said there might probably be some little change in them since 1882, he did not pretend to say that there was in fact any change, or that they were in any respect different. Besides the changes, it any, may have been made in some of the rules not offered in evidence, for it appears that the whole of the series was not read or offered in evidence. I do not think there was any error in either of the said rulings to the prejudice of the defendant.

3. The important inquiry in this ease is, whether or not the court erred in its finding upon the demurrer to the evidence. The material facts proved by the evidence are as follows: On the 7th day of December, 1882, two locomotives with trains attached belonging to the defendant, running in opposite directions, the one going east and the other west, collided on the defendant's road at the west end of Stretcher's Neck tunnel in the county of Fayette, and John J. Madden, the plaintiff's intestate, who was...