Pallotto v. Cherry River Paper Co.
| Decision Date | 18 September 1928 |
| Docket Number | 6264. |
| Citation | 144 S.E. 720,106 W.Va. 60 |
| Parties | PALLOTTO v. CHERRY RIVER PAPER CO. |
| Court | West Virginia Supreme Court |
Submitted September 11, 1928.
Syllabus by the Court.
The action of a trial court in setting aside a verdict and granting a new trial for error in the admission of evidence will not be disturbed by the appellate court unless it appears that the verdict was plainly right and the error was harmless. In such instances the judgment of the trial court as to the potency of the error is regarded with peculiar weight, in view of his knowledge of the case derived from his observations of the conduct of the trial.
"The appellate court will not usually review the evidence where it affirms the order of the lower court awarding a new trial unless it is necessary to ascertain the correctness of the lower court's action." Martin v. Supply Co., 88 W.Va. 471, 3d pt. Syl., 107 S.E. 183.
Error to Circuit Court, Nicholas County.
Action by Pasqualino Pallotto, suing by next friend, against Cherry River Paper Company. To review the action of the trial court in setting aside verdict for plaintiff on defendant's motion, and awarding new trial, plaintiff brings error. Affirmed.
Emmett Horan, of Summersville, and W. J. Daugherty and J. Howard Hundley, both of Charleston, for plaintiff in error.
E. H Morton, of Webster Springs, Wolverton & Ayres, of Richwood and A. N. Breckenridge, of Summersville, for defendant in error.
LIVELY P.
A jury returned a verdict in favor of plaintiff, Pasqualino Pallotto, suing by next friend, for personal injuries; and, on defendant's motion, the trial court set aside the verdict and awarded a new trial, from which action of the court plaintiff prosecutes error.
Defendant company operated a train over its private railroad from its paper mill to the station of the Baltimore & Ohio Railway in the city of Richwood, and beyond to Cherry River Boom & Lumber Company mill, for carrying raw material and supplies to its mill, and freight from the mill to be delivered to the other named railroad, a common carrier; and, incidentally, for carrying to and from the mill its employees. The employees rode in cabooses, at each end of which steps led from the ground to a platform, from which platform there was entrance through a doorway into the car. Defendant's track runs from the mill up Cherry River into the corporate limits of the city, and crosses over Oakford avenue, on the south side of which is the depot of the common carrier railroad. The train had thus been operated for perhaps 23 years.
On July 30, 1926, when plaintiff received his injuries, the train, composed of a locomotive, tender, a rack car next to the tender, then two cabooses, and another rack car in the rear, manned by an engineer, fireman, brakeman and conductor, came from the mill at the noon hour and stopped on and across Oakford avenue, one of the main streets of the city. It stayed there long enough for the employees to alight, and for others to enter for the return trip, consuming about two or two and a half minutes of time; when, upon signal from the brakeman, answered by three blasts of the whistle, the engineer began backing the train. Plaintiff, a child of tender years (alleged to be four years of age in the declaration, but the evidence is silent as to his age), was either getting upon or off the front platform of the front caboose, or was standing thereon, when the train began to move, and he fell under the train, causing injuries which necessitated amputation of one leg, and the fingers from one hand. The train was immediately stopped, not having moved over three to six feet, and the unfortunate boy was rescued from under the wheels, which had not passed entirely over his leg.
The first count of the declaration charges that defendant wrongfully and negligently obstructed the street for a great length of time, which made it necessary for persons traveling thereon, and especially plaintiff, to climb over the cars in proceeding along the street, and that the trainmen knew the street was so obstructed and knowingly permitted plaintiff and other persons so traveling to climb over the cars; that it was the duty of defendant to operate its train at that point in a reasonably careful and prudent manner with due regard to the safety of other people and plaintiff; but that defendant failed in that duty in this: That plaintiff, while going to a point beyond Oakford street, with the knowledge and consent of defendant's employees, was walking across the platform of one of the cars in the train then completely obstructing passage over said street, and defendant then and there negligently, carelessly, unlawfully, and wrongfully started the train, and particularly the car which plaintiff was crossing, in motion, and caused the same to jerk violently and suddenly with great force, with full knowledge that plaintiff was crossing said car; and plaintiff was then and there thrown on the track and injured by the wheels.
The second count charges that defendant owned the track and train, and operated the train over the track which extended over and across Oakford street, a public highway in the city of Richwood; and that the servants of defendant so carelessly, negligently, etc., operated the train at Oakford street that they drove the locomotive engine, tender, and cars with great force and violence against and over plaintiff, an infant of _____ age, severing a leg and hand, and permanently injuring him. Demurrer was filed to the declaration and each count, and overruled. Plaintiff filed in support of second count a bill of particulars, to which defendant objected, but the objection was overruled. The bill of particulars sets out the negligent acts of defendant as follows: Stopping the train across Oakford avenue; and allowing persons traveling thereon to pass over the steps and platform of caboose; in not providing persons to be stationed at said crossing to see that children of tender age should not travel the steps and platform; in allowing plaintiff, with knowledge of defendant, to attempt to cross; and, after he had mounted the platform, to move the train suddenly and with a jerk without warning, knowing plaintiff was in the act of crossing, thereby throwing him on the track and injuring him; and in not providing proper protection upon the caboose to prevent persons on the same, with defendant's knowledge and consent, from being thrown therefrom. Upon setting aside the verdict now complained of, the court sustained demurrer to the second count, which automatically struck out the bill of particulars filed in support thereof.
The second count is entirely too general and indefinite, and the demurrer should have been sustained. This count simply says that defendant owned and operated a train of cars which passed over a public street, and negligently drove the cars against plaintiff and injured him. Declarations in cases of this character must aver the duty of defendant, aver the existence of negligence in its performance, and specify the act resulting in damages. It need not detail all the facts evidencing negligence. Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 39 L. R. A. 499, 64 Am St. Rep. 922. The elements of a good declaration in such cases are the duty, breach thereof, how breached, and consequent injury. Wills v. Coal Co., 97 W.Va. 476, 125 S.E. 367. The bill of particulars filed in support of this count cannot be considered on a dem...
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