Potts v. Union Traction Co.

• Decision Date: 08 December 1914
• Docket Number: No. 2436.,2436.
• Citation: 75 W.Va. 212
• Parties: Potts, Admr. v. Union Traction Co.
• Court: West Virginia Supreme Court

75 W.Va. 212

Potts, Admr.

v.Union Traction Co.

No. 2436.

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1914.

Decided December 8, 1914.

1. Trial-Direction of Verdict Evidence.

A motion to direct a verdict should be overruled when, regarding defendant as demurrant thereto, plaintiff's evidence shows a prima facie case for recovery。 (p. 214).

2. Same Motion to Direct Verdict Consideration of Evidence.

Upon such motion, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged favorably to plaintiff; and the court must assume as true those facts which the jury could properly find under the evidence. (p. 214).

3. Street Railroads Children on or Near Track Care Required.

A higher degree of care is required of a railway company for the protection of children on or near its tracks than is required for the protection of adults in the same situation, (p. 214).

4. Same Death of Child Negligence of Motorman Liability of Com

pany.

A motorman, operating an electric car in a city street, must exercise ordinary care to discover and protect from injury a child on or near the track; and if in the exercise of such care he might have discovered it in time to avoid injury, and failed to do so, his company is liable for the ensuing death. (p. 214).

5. Same Injury to Child Discovered Peril Duty of Motorman.

Upon discovery of the peril of a child in close proximity to the track, the motorman must immediately adopt and use all reasonable efforts to avoid injuring it, by sounding bell or gong, by reducing the speed of the car, or by stopping it when necessary. He can not assume that a child of tender years will discern and avoid the perils of its situation. (p. 214).

5. Death Action by Administrator Defense Negligence of Mother. Where a father, the sole beneficiary, sues as administrator for the wrongful death of his son, negligence of the mother contributing to the injury will not bar recovery. (p. 216).

Error to Circuit Court, Wetzel County.

Action by J. A. Potts, Administrator, etc., against The Union Traction Company. Judgment for defendant and plaintiff brings error.

Reversed and Remanded for New Trial.

M. R. Morris, P. D. Morris, H. H. Rose and Thomas H. Cornell, for plaintiff in error.

E. L. Robinson, J. II. Robinson and T. P. Jacobs, for defendant in error.

Lynch, Judge:

Plaintiff's intestate, a child two years and eight months old, was killed in the village of Brooklyn by defendant's car, on a line operated by it between New Martinsville and Sistersvilie. When plaintiff had introduced his evidence, the court, on motion, excluded it and directed a verdict for defendant. Of this ruling plaintiff complains.

A motion to exclude has the effect of a demurrer to evidence, and should be overruled where had the jury found for plaintiff a new trial ought to be denied. Johnson v. Railroad Co., 25 W. Va. 570; Dressser v. Transportation Co., 8 W. Va. 553; Nuzum v. Railroad Co., 30 W. Va. 228; Howard v. Car Co., 66 W. Va. 266. The chief points of difference between such motion and demurrer are the stage of the proceeding at which each is available and the consequences resulting from deferring the motion to exclude, Carrico v. Railroad Co., 35 W. Va. 389; Adkins v. Fry, 38 W. Va 549. In the Soward case it is said: "A motion by defendant for a direction to find a verdict for him is a substitute in modern practice for the largely disused demurrer to evidence. It has the same effect, and is dealt with as the same." So that, if upon demurrer the evidence, fairly considered, warrants a finding for plaintiff, a motion to exclude should not prevail. It should be sustained only when the evidence is insufficient to support a verdict. Kellerman v. Railway Co., 48 W. Va 606. Or, as held in Cobb v. Lumber Co., 57 W. Va. 49, and Williamson v. Nye, 58 W. Va 629, where the evidence makes a prima facie case for recovery it should not be excluded on defendant's motion. The ultimate test is, should the court in view of the facts proved decline to enter judgment on the verdict because unsupported by adequate proof? Upon such motion, every reasonable and legitimate inference fairly arising upon the evidence, when considered in its entirety, must be indulged favorably to plaintiff; and the court must assume as true these facts which the jury could properly find under the evidence. Wallace v. Railway Co., 25 L. R. A. 663; Dempsey v. Railway Co., 69 W. Va. 271.

Reasonably and naturally, the conduct of children can not be measured by the same standard as the conduct of adults. Children of immature age lack ability to discern and appreciate danger and to exercise care to avoid injury. A higher degree of care is required for their protection than is required for the protection of adults. Because of their lack of experience, they must be dealt with as children, and not as dults. Gunn v. Railroad Co., 42 W. Va. 676. While a hotorman may reasonably assume that an adult will exercise due care for his own safety, no such presumption arises as to infants of tender years. He must exercise a high degree of watchfulness and care in places where he may reasonably anticipate the presence of children. And if while operating his car he sees, or by the exercise of ordinary care could see, a child of tender years on or near the track, he is not permitted to assume, and should not assume, that the child will discern and avoid the perils of its situation. But he must immediately adopt and use all reasonable efforts to avoid injuring it, by sounding bell or gong, by reducing the speed of his car, or by stopping it if necessary. And if, by the exercise of ordinary care and caution, he might have discovered the child in time to avoid injury, and fails to do so, his company is liable for the ensuing death. 36 Cyc. 1521; Wallace v. Railroad Co., supra; Sample v. Railroad Co., 50 W. Va. 472; Dempsey v. Railway Co., 69 W. Va. 271; McGwire v. Railway Co., 70 WT. Va. 538. If a child is on or in close proximity to a railroad track, or is approaching it and evinces a purpose to pass on or across it in front of an approaching train or car, and is injured, the company is liable if its servants by the exercise of...