Mott v. Davis

• Citation: 90 W.Va. 613
• Parties: L. 0. Mott, Administrator, v. James Davis, Agent, Etc.
• Decision Date: 28 March 1922
• Court: West Virginia Supreme Court

90 W.Va. 613

L. 0. Mott, Administrator,

v.James Davis, Agent, Etc.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1922.

Decided March 28, 1922.

1. Evidence It is Not Error to Reject Evidence Having No Substantial Probative Value.

On the trial of an issue before a jury it is not error to reject evidence having no substantial probative value thereon. (p. 618).

2. Negligence Evidence of Railroad Employe's Intoxication Competent on Contributory Negligence in Mitigation of Damages.

In an action under the Federal Employer's Liability Act, for damages for personal injuries sustained by an employee while employed in interstate commerce, evidence tending to show his intoxication when injured is competent to go to the jury on the question of his contributory negligence, not as constituting a complete defense, but in mitigation of damages. (p. 619).

3. Tbial Refusing Instructions on Matter Covered by Other Instructions Not Error.

Instructions to the jury on only one of the main issues of fact, as to which the evidence is in any appreciable degree conflicting, and covered by other instructions given and embracing the entire concrete case, may properly be rejected. (p. 619).

4. Master and Servant Ordinary Risks of Riding Freight Trains Assumed.

Where the duties of a railway employee require him to mount and ride moving freight trains, such employee assumes all the ordinary and usual risks pertaining to his employment, including the mounting and riding of such trains, but not extraordinary risks unknown to or not plainly discernible by him, and the rights and liabilities of the parties must generally be measured by the rules and principles pertaining to master and servant and not by those applicable to passenger and carrier. (p. 622).

5. Same Negligence Must be Proved.

In such an action for personal injuries by an employee against his employer the fact of the injury does not render the employer presumptively negligent; generally the negligence of the master must be proven, and the rule res ipsa loquitur does not apply. (p. 624).

6. Same Instructions on Assumption of Risks, Held Misleading.

If from the circumstances of the injuries to an employee of a railway company he could not have seen and appreciated the extraordinary movement of a train and the danger to which he was thereby subjected and which resulted in his injuries, instructions to the jury on the theory of assumption of risk from known and apparent dangers should be rejected as misleading and improper. (p. 624).

7. Same Negligence Within Federal Act Not Presumed.

In an action for personal injuries under the Federal Employer's Liability Act, the alleged negligence of a railway company complained of must be proven by plaintiff by a preponderance of the evidence, and can not be presumed. (p. 625).

8. Trial Court Should Not by His Charge Refer to Declaration to Determine Acts of Negligence Charged.

In an action by an employee against a railway company under the Federal Employer's Liability Act, for personal injuries sustained, due to the alleged negligence of the defendant, the court should not by instructions on the subject of such negligence refer the jury to the declaration to determine what the acts of negligence charged against the defendant are. Such acts should be covered by or recited in the instructions. (p. 625).

9. Same Instructions Permitting Exclusion of Evidence Erroneous.

An instruction to the jury from which they might infer that plaintiff in establishing the fact of defendant's negligence was limited to his own evidence to the exclusion of defendant's evidence, is misleading and erroneous, (p. 625).

10. Master and Servant Risk of Dangerous Method Directed Not Assumed.

While as a general rule, if two ways are presented to art employee for the performance of his duties, one a safe way, the other dangerous, and he chooses the dangerous way, he thereby assumes the risk of the latter, yet if he has been directed by his employer to perform his duties in the dangerous way, the master becomes liable for the injuries sustained by the servant due to any extraordinary or unusual dangers unknown to him and to which he is subjected in the performance of his duties in the dangerous way. (p. 626).

11. Same Railway Employee Required to Mount Moving Trains. Not a passenger.

The relationship of a railway company to its employee required to mount its moving trains in the performance at his duties, is that of master and servant, not that of passenger and carrier, and their respective rights and liabilities are to be determined by the law applicable to them in their proper relationship. (p. 626).

12. Same Instruction on Intoxication of Employee Falling Under Train Improperly Refused.

If the proximate cause of the injuries sustained by a rail- way employee was his use of intoxicating liquors, the railway company is not liable therefor; and an instruction to the jury so advising them, if there is appreciable evidence of the fact, is proper; but if the fact is controverted and such instruction is given on behalf of the railway company, it is error to reject an instruction proposed by the plaintiff, based on such conflicting evidence, telling them that though they may find the employee had taken a drink or so of liquor before mounting the moving train that injured him, they could not take that fact into consideration unless they believed that he would not have fallen under the train had he not drunk the liquor. (p. 626).

13. Same Railway Employee Riding According to Custom Entitled to Protection.

Although an employee of a railway company may have given an unreasonable and improper construction of the orders of a superior officer in reference to mounting and riding moving trains in the discharge of his duties, and because thereof rides from the place of his employment to an intermediate point or station, breaking the journey, and there resumes his journey on another train according to the custom of employees, he is entitled to protection from unnecessary and unusual movements of the train due to employees generally because of such established custom known to the railway company. (p. 626).

Error to Circuit Court, Mineral County.

Action by Mary R. Harness, administratrix of the estate of C. E. Harness, deceased, against the Baltimore & Ohio Railroad Company and Walker D. Hines, Director General of Railroads, in which L. O. Mott, as administrator, was substituted for the plaintiff and James Davis, Agent, etc., was substituted for the defendant Walker D. Hines and for the Railroad Company. Verdict of not guilty and judgment of nil capiat against the plaintiff and the plaintiff brings error.

Reversed and remanded.

Harry G. Fisher, for plaintiff in error.

Emory Tyler and Wm. G. Conley, for defendant in error.

Miller, Judge:

The case on the present hearing is substantially the same as to pleadings and proofs as when presented on a former writ of error, then styled Mary R. Harness, Adm'x. v. Baltimore & Ohio Railroad Company et al., reported in 86 W. Va. 284. On the last trial in the circuit court the name of the present plaintiff was substituted for that of Mary K. Harness, Administratrix, and the name of the present defendant for that of Baltimore & Ohio Railroad Company et al., due to the change in the director general or agent designated by the President pursuant to the Transportation Act of 1920. The rules and principles enunciated on the former hearing, and in the written opinion and mandate of the court must therefore be regarded and applied as the law of the present case.

The result of the new trial awarded the plaintiff on the former hearing was the same as on the first trial, except that on the first trial the court directed a verdict for the defendant, while on the second trial the case was submitted to the jury on instructions by the court, resulting in a verdict of not guilty and the judgment of nil capiat against the plaintiff, the subject of the present writ of error.

Counsel for plaintiff, in his original brief, points out several particulars in which he thinks the case for the plaintiff was greatly strengthened by the evidence adduced on the last trial. For example, he says that the custom of employees riding trains between Piedmont and Keyser established on the former trial was admitted by the agents and officers of the railroad company on the second trial and was shown to have existed practically since the railroad was constructed and operated. And further that it was shown that this custom extended to others than railroad employees. That it was also shown that nearly all the members of the crew of the train that killed Harness knew of the existence of this custom at Piedmont. Still another point on which counsel conceives his case was improved on the second trial, was that it was shown that the passes issued to Harness and his fellow workmen were good only on passenger trains, while their orders from their superior officers were to ride freight trains, or anything they could get in on, so as to save

the time of service, an act of negligence in itself justifying recovery, as they were entitled to a safe means and method of transportation in going to and from their work as car inspectors at Bond.

In our opinion it will be unnecessary to regard these points of supposed vantage except as they may be involved incidentally in disposing of the several other points of error relied on for reversing the judgment, These relate in the main to the admission and rejection of evidence, and to the giving and refusing of instructions to the jury.

The evidence said to have been erroneously rejected, and covered by plaintiff's bill of exceptions No. 2, was that of 0. L. Bosley, C. N. Brown and Tom F. Kenney, to the effect that they had seen other persons than employees on many occasions boarding and riding moving freight trains at Piedmont and Keyser. We do not think the rejected evidence of these witnesses was sufficient to establish a custom imposing any...