Norfolk & W. R. Co v. Shott.1

• Decision Date: 01 August 1895
• Citation: 92 Va. 34,22 S.E. 811
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. SHOTT.1

22 S.E. 811

92 Va. 34

NORFOLK & W. R. CO.

v.SHOTT.¹

Supreme Court of Appeals of Virginia.

Aug. 1, 1895.

Who are Passengers—Continuance for Absence of Witness—Bill of Exceptions—Damages —Misconduct of Counsel—Review.

1. A mail agent traveling on a railroad under a contract between the government and the railroad company is a passenger.

2. A witness who was an employe of the defendant, living within 8 or 10 miles of the place of trial, was not subpoenaed, but defendant undertook to have him present at the trial. Held, a refusal to continue the case on the ground of his absence was not reversible error.

3. A bill of exceptions to the admission of evidence over objection should be asked for, and signed by the judge, distinctly pointing out each objectionable ruling; otherwise, the objection will be deemed abandoned.

4. More than one exception may be embraced in one bill, but each exception must be distinctly set forth.

5. Where there is no legal measure of damages, the court will ordinarily leave the question of the amount to the sound discretion of the jury.

6. If the record fail to note the language used by counsel in an address to the jury, an objection to the same will not be considered.

Error to circuit court, Pulaski county; Williams, Judge.

Action by H. I. Shott against the Norfolk & Western Railroad Company. Plaintiff had judgment, and defendant brings error. Affirmed.

Jas. A. Walker and J. E. Moore, for plaintiff in error.

Wysor & Morton and Ford & Ford, for defendant in error.

HARRISON, J. This is an action to recover damages for personal injuries sustained by the defendant in error on the 18th of June, 1892, while traveling, as mail agent and postal clerk, on one of the passenger trains of the Norfolk & Western Railroad Company. The injuries complained of were received in a collision between a passenger train going southwest and a tram of freight cars moving northeast, which occurred near New River station, in the county of Pulaski, Va. The accident was the result of gross negligence in the conductor on the passenger train, in failing to obey an order to wait at New River station for the freight train with which he collided. This suit was brought in the circuit court of Pulaski, and resulted on the 8th day of August, 1893, in a verdict for the plaintiff for $7,000. The court overruled a motion for a new trial, and entered judgment upon the verdict.

It is established by the evidence that the plaintiff was an employe of the federal government, and was on the passenger train in the legitimate discharge of his duty as mail agent and postal clerk, under some contract between the government and the defendant company as to carrying the United States mail.

The relation the plaintiff bore to the railroad company, as a common carrier, imposed upon the defendant company the same degree of care for the plaintiff that it was bound to exercise towards every passenger upon its train. The plaintiff was in no sense an employe of the defendant company, and can only be treated as a passenger. The negligence of the company is not denied, and we do not understand the plaintiff's right of recovery to be seriously controverted.

The first error assigned is the refusal of the circuit court to sustain the demurrer to the declaration. No reason is suggested in support of this assignment, and the court, perceiving no ground of objection to the declaration, is of opinion that the demurrer was properly overruled.

The second assignment of error is the refusal of the circuit court to continue the case, on the motion of the defendant company, on the ground of the absence of a material witness.

The court in which a trial takes place is in a position to determine, better than any one else can do, the sufficiency of grounds relied on for a continuance; hence it is that an appellate court does not interfere, unless the judgment of the court below, on such a motion, is plainly erroneous. It has been repeatedly held by this court that a motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and, though an appellate court will supervise the action of the lower court on such a motion, it will not reverse a judgment on that ground, unless plainly erroneous. Hewitt's Case, 17 Grat. 627; Harman v. Howe, 27 Grat 676; Rou-sell's Case, 28 Grat 930; Walton^s Case, 32 Grat. 855; Bland & Giles County Judge Case, 38 Grat. 443; Keesee v. Bank, 77 Va. 129; and Mister's Case, 79 Va. 5.

In the case at bar the absent witness was an employe of the defendant company, living within 8 or 10 miles of the courthouse where the trial took place. He was not summoned in the mode prescribed by law, —by a subpoena placed in the hands of the sheriff to be served, —but the plaintiff in error undertook the responsibility of summoning the witness, and having him present at the trial. After a careful examination of all the facts and circumstances relating to this assignment of error, we have reached the conclusion that the action of the circuit court in overruling the motion for a continuance was not so clearly improper, or plainly erroneous, as to justify this court in setting aside the judgment on that ground.

The third assignment of error is as follows: "Because of the erroneous rulings of the court below as set out in bill of exceptions No. 3."

Bill of exceptions No. 3 covers 124 pages of evidence, an examination of which shows that, in the progress of the trial, numerous points were saved, both by the plaintiff and defendant, as to the propriety of certain questions, and the admissibility of the evidence contained in certain answers. The bill of exceptions does not specify which rulings of the court upon these numerous points are relied on as erroneous.

The failure to take a bill of exceptions alleging errors committed by the court in the admission or rejection of evidence is treated in the appellate court as a waiver or abandonment of those objections.

When exception is taken to the admission or exclusion of evidence, the...