Robinson v. West Va. & P. R. Co

• Decision Date: 13 April 1895
• Citation: 21 S.E. 727,40 W.Va. 583
• Court: West Virginia Supreme Court
• Parties: ROBINSON . v. WEST VIRGINIA & P. R. CO.

21 S.E. 727

40 W.Va. 583

ROBINSON .

v.WEST VIRGINIA & P. R. CO.

Supreme Court of Appeals of West Virginia.

April 13, 1895.

Death of Employe—Contributory Negligence —Sufficiency of Evidence.

1. An engineer runs his train on a 16" curve, at a high rate of speed for such a curve, and against the express orders to him of the railroad company, requiring him at that place to go slow. The engine, with four cars, leaves the track, whereby the engineer is killed. There is some evidence tending to show that the outer rail of the curve is not higher than the inner one. Outside of mere conjecture, this is all that is known of the cause of the accident. There can be no recovery against the company for negligently causing his death; for it thus appears that, if the lowness of the outer rail was a cause of the accident, his own want of due care and his violation of orders contributed to cause the same.

2. A verdict based alone on mere conjecture, without evidence to support it, where the rule as to the burden of proof requires some reliable affirmative evidence, should not be permitted to stand.

3. Contributory negligence is a bar to the right of recovery.

(Syllabus by the Court.)

Error to circuit court, Lewis county.

Action by Lilly M. Robinson, administratrix, against the West Virginia & Pittsburgh Railroad Company, to recover for the death of decedent Plaintiff had judgment, and defendant brings error. Reversed.

John Brannon and W. Mollohan, for plaintiff in error.

W. B. McGary, for defendant in error.

HOLT, P. William Robinson, plaintiff's intestate, was a locomotive engineer on defendant's railroad, running from Weston south to Braxton C. H., and had been for three years next preceding the lamentable accident which caused his death, on the 10th day of December, 1892. On that day he started to run engine No. 1 and 12 empty freight cars from Weston to Sutton. At the Bendale 16° curve, 1 1/2 miles from the starting point, while running at the forbidden rate of speed of about 20 miles an hour, the train and four cars left the track, killing the engineer Robinson, and crippling badly his fireman, William Byers. There was evidence tending to show that on this curve, at or near where the train ran off on the outer side, the rail on that side was not higher than the inner rail. There was a verdict for the plaintiff for $4,000. A motion for a new trial was overruled, judgment rendered on the verdict, and from that this writ of error was awarded.

It is the personal duty of the railroad company, no matter by whom it may be or is to be directly performed, to provide a reasonably proper and safe railroad track, machinery, and other suitable means and appliances, and maintain and keep them thus reasonably safe, and also reasonably fit and proper fellow servants. The servant takes upon himself the risks incident to the em ployment. A servant having knowledge of danger about him must use diligence and care in protecting himself from harm, and not willfully encounter dangers which are known to him. Neither can he recover if his injury was the direct result of his own disobedience of orders. In the case given, the mere fact of the accident creates no presumption of negligence on the part of the company. That must be done by affirmative testimony, and the burden of such proof is on the plaintiff; and, if it thereby also is made to appear that the fault of the decedent contributed directly to the result, the right to recover does not arise, but otherwise the contributory fault and negligence of the plaintiff's intestate is matter of defense, and proof thereof must come from the defendant. Mere conjecture alone cannot supply the place of the proof required. To believe on conjecture and to conjecture without evidence will not do. If there is no evidence of negligence in any fairly appreciable degree tending to prove defendant's negligence, then the court, on motion, should instruct the jury to find for the defendant; and the court must decide when the case calls for such instruction, for to that extent it is a question of law arising out of the testimony; but if, in the opinion of the court, the evidence tends in a fairly appreciable degree, not by a mere scintilla, to prove negligence on the part of the defendant, then the question should be submitted to the jury. If the verdict be for the plaintiff, and it is without evidence, in the above sense, on some essential point, or it manifestly appears that there is a clear and decided preponderance of evidence thereof against the finding of the jury, then the verdict should be set aside, and a new trial awarded; for, under our present statute, all the evidence must be considered.

The contention of the plaintiff Is that the verdict is justified because it was made to appear that the railroad company failed to provide the decedent with a reasonably safe and proper engine, or a reasonably safe and proper track, at the Bendale curve. The defendant contends that plaintiff fails to make out his case on either ground, or to show by evidence, in any fairly appreciable degree of convincing effect, that defendant was negligent in any respect, or to put the cause of the accident or how it occurred on any ground higher than mere conjecture; and that, conceding this to be the proven cause, then it appears, by the uncontradicted testimony of his fellow servants who were on the train, that he ran it on this sharp curve, which he well knew, at a speed of 20 miles an hour, whereas he was warned of the character, and expressly told by those whose duty it was to command to be careful and not run the Bendale curve at a higher speed than about 8 miles an hour.

1. Was the engine a reasonably safe and proper one? The machinist in the shop whobrought out engine No. 1 for the trip, and Inspected it and carefully examined It at the time and for the occasion, says it was in good condition. So, also, the pony truck under the engine which...