Overby v. Chesapeake

• Decision Date: 28 January 1893
• Citation: 37 W.Va. 524
• Court: West Virginia Supreme Court
• Parties: Overby v. Chesapeake & Ohio R'y Co.

37 W.Va. 524

Overby

v.Chesapeake & Ohio R'y Co.

Supreme Court of Appeals of West Virginia.

Submitted January 12, 1893.

Decided January 28, 1893.

Damages Contributory Negligence.

Where negligence is the ground of an action it rests upon the plaintiff to trace the fault of his injury to the defendant, and for this purpose he must show the circumstances under which the injury occurred; and if from these circumstances so proven by the plaintiff it appears that the fault was mutual, or, in other words, that contributory negligence is fairly imputable to him, be has, by proving the circumstances, disproved his right to recover, and on the plaintiff's evidence alone the jury should tind for the defendant, (p. 527.)

Damages Contributry Negligence.

The general rule in regard to contributory negligence is that, if the negligence be mutual on the part of the plaintiff and defendant, there can be no recovery, (p. 530.)

Damages Contributory Negligence Employes.

Where an employe of a railroad company receives an injury which is caused by his acting in direct violation of a reasonable rule made by said company for the safety of its servants, of which rule he has notice, and has promised to obey, he must be deemed guilty of contributory negligence, and can not recover damages from the company for such injury, (p. 534-537.)

4. Motion to Strike Out Evidence.

A motion to strike out the plaintiff's evidence will not be entertained after the defendant has given in his evidence, on the ground that it is insufficient to sustain the issue on the part of the plaintiff, (p. 533.)

5. Evidence Experts.

If-the facts in a case can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then the opinion or experts can not be received in evidence as to such facts, (p. 532.)

6. Evidence.

The opinion of a witness, who neither knows nor can know more about the subject-matter than the jury, and who must draw his deductions from facts already in the possession of the jury, is not admissible, (p. 532.)

7. Evidence Experts.

When the inquiry relates to a subject which does not require peculiar habits of study in order to enable a man to understand it, the opinion of skilled witnesses is not admissible, (p. 532.)

Simms & Enslow for plaintiff in error cited 31 W Va. 142. p't 1, Syll.; 27 W. Va. 285, p't 8, Syll.; 33 W. Va 135; 34 W. Va. 509; Id. 657; 53 Wis. 661; 28 Minn. 128; 63 K Y. 449; 67 Mich. 61; 69 Mo. 32; 101 N. Y. 520; 94 Pa. St. 102; 55 Tex. 110; 83 Iud. 191; 57 Cal. 15; 114 111. 244; 32 Mich. 411; 83 Va. 295; 122 U. S. 195; 78 Va. 709; Whar. Xeg. (2d Ed.) §§ 213, 214; Cool Torts 551, 552; Bea. Con. Neg. § 140; 111 Ind. 212; 69 Tex. 665; 55 Wis. 50;

33 Ohio St. 227; Id. 468; 34 W. Va. 500; 1 Shear. & Red. Xeg. § 202; Rog. Ex. Tes. 26; 97 N. Y. 507, 513; 23 W. Va. 305, 306; 100 Pa. St. 266, 273; Rog. Ex. Tes. §20; 30 la. 533; 31 Gratt. 200.

J. S.Marcum and Vinson & McDonald for defendant in error, cited 76 Pa. St. 389; 7 Hurl. & N. 937, 945; 100 U. S. 213; 31 Minn. 248; 29 Conn. 204; 48 Mich. 205; 63 Mo. 445; 73 N. Y. 585; 190 Mo. 673; 92 Mo. 440; 84 Va. 167; 31 W. Va. 142; Shear. & Red. Feg. § 215; 98 Mo. 62; 76 Wis. 120; 51 Mich. 276; 40 Mich. 423; 27 S. C. 456; Shear. & lied. Xeg. (4th Ed.) § 213; 60 N Y. 607; 29 la. 47; 8 Allen 441; 147 Mass. 448,.'

English, President:

This was an action of trespass on the case, brought by Warren Overby against the Chesapeake & Ohio Railway Company on the 24th day of August, 1889, in the Circuit Court of Cabell county, to recover damages for an injury received while in the service of said company, which resulted in the loss of a portion of his right hand. The declaration was demurred to, the demurrer was overruled, issue was joined upon the plea of not guilty, and on the 20th day of March, 1890, the case was submitted to a jury, and resulted in a verdict for the plaintiff of five thousand dollars. This verdict was, on motion of the defendant, set aside, and a new trial awarded, and on the 8th day of December, 1890, the case was again submitted to a jury, who found a verdict for the plaintiff for two thousand five hundred dollars. A motion was made to set this verdict aside on the ground that the same was contrary to the law and evidence, which motion was overruled, and judgment was rendered against the defendant upon said last named Verdict. The defendant excepted, and tendered its bill of exceptions, in which the evidence adduced in the case is fully set forth, and the material facts are as follows:

On the 5th day of December, 1888, the plaintiff, Warren Overby, was employed by the defendant as an engineer, and was running what is known as a "yard engine" at the city of Huntington, and had been in the employ of the defendant about four years. He had, however, been running an engine for the defendant about three months, most of the time in the roundhouse yard, and about the engine works, and on the depot yard. In said depot yard the defendant had stretched two semaphore wires between the main track and a side track, which the plaintiff avers in his declaration were three inches from the ground and four inches apart, which wire had been in that position for about three mouths before the accident; and the plaintiff, in his testimony, states that he noticed them soon after they were first put up there. About four o'clock in the morning of the 5th of December, 1888, he testifies that he noticed that his headlight was out on the tender; that he took a lighted torch, and proceeded to look for an extra globe on the en- gine; that he got off of the engine to see if Fox had a headlight globe, but Fox did not have any, and he returned, and set his torch on the engine, and stepped back to see what kind of signals they were giving. There was a confusion of signals, and just as he got back some distance they gave the backing up signal, and started to back up, and he started to get on the engine between the north main line and the side track. The night was very dark, and the engine was running at the speed of about three miles an hour when the plaintiffs foot hung in the wire, and he fell with his hand on one of the rails, and the engine ran over it and crushed it.

The plaintiff, in reply to the question, "How often did you notice them?" (meaning the wires) answered: "I noticed them in passing them, I could not say how often;" that he could see them in the daytime from his engine. They were right by the north main line. The plaintiff also states in his testimony, when asked, "If the engine had not been moving, would it have cut your hand off?" "No sir; nor if the wires had not been there it would not have cut my hand off either."

A receipt, signed by the plaintiff, in the following words and figures, was also offered in evidence: "Receipt for time card, rules, and regulations. Received September 15th, 1885, of the Chesapeake and Ohio Railway, a copy of time table No. 27, dated Sept. 18th, 1888, containing conditions of employment, and rules governingits employes all of which I promise to read carefully, and to comply with their stipulations." Rule No. 142 in the time table as receipted for was also read in evidence, and is in the following words:

"Every employe is required to exercise the utmost care to avoid injury to himsef or his fellow employes, and specially in switching or other movements of cars and trains. In coupling cars a stick should always be used to guide the link whenever it is possible to make the coupling in this way, and yard master, switchman, brakeman, or other employe who may be expected to couple cars should provide himself with and keep at all times a stick for that purpose. A supply of these sticks is always kept at divisional head- quarters. Jumping on or off trains or engines when in motion, entering between ears, when in motion, to uncouple them, and all such imprudences, are dangerous, and in violation of the rules of this company."

The plaintiff's hand was crushed by the wheels of the moving engine, and it is manifest that, if the car had been stationary, the injury would not have resulted. The wire might have caused him to stumble and fall, but his hand woulcl not have been crushed by the wheel.

The evidence discloses that the night was very dark, and that the plaintiff", leaving his engine in charge of the fireman, took his torch, and went in search of a globe for his headlight: that he returned and placed his torch on the engine, which was then standing still, and passed back over these wires, in order that he might see what kind of signals they were giving. He knew of the existence of these wires, as is shown by his testimony, and by his statements made in Richmond, in which be says he had fallen over them in the daytime, he thought, and he knew of others who had fallen over them, and he knew they were dangerous.

This Court held in the case of Hoffman v. Dickinson, 31 W. Ya. 142 (6 S. E. Rep. 53) p't 9 of Syllabus: "If the master has been guilty of negligence in failing to procure suitable appliances or machinery for carrying on his business, and injury results therefrom to his servant, he must respond in damages, unless the servant, well knowing the default in this respect, enters upon the employment, or continues therein after such knowledge;" * * * "in such case he assumes the increased risk, and can not hold the master responsible for the consequences."

The evidence in the case leaves no room for doubt upon the question as to whether the plaintiff had knowledge of the existence of these wires, their locality, and the manner in which they were stretched between the tracks.

It is true that in 1 Shear. & R. Neg, § 213, the author says: "In analogy to the principles already stated under the head of 'contributory negligence, ' the servant's rights are not prejudiced by his forgetfulness of or failure to observe a defect under the influence of sudden alarm, or...