Roderick v. Baltimore & O. Railroad Co.

• Decision Date: 22 August 1873
• Citation: 7 W.Va. 54
• Parties: RODERICK v. BATILMORE & O. RAILROAD COMPANY.
• Court: West Virginia Supreme Court

7 W.Va. 54

RODERICK v. BATILMORE & O. RAILROAD COMPANY.

Supreme Court of West Virginia.

August 22, 1873

1. When the plaintiff files an amended declaration, which is complete in itself, and does not refer to, or in any manner adopt the former as part of the same, and to which amended declaration defendant replies and issue is joined thereon, the former shall be considered as withdrawn or abandoned.

2. A plea filed to the first declaration, but not wtihdrawn, will be regarded as filed to the second declaration.

3. A new trial will not be granted after verdict, because the amount of damages assessed by the verdict exceeds the amount claimed in the writ, but not the amount laid in the declaration.

4. A new trial will be granted on the affidavit of a party, or of some other person, on the ground of newly discovered testimony, when the affiant shows that he has conversed with the witnesses, and details the testimony which they will give, and the court sees that it is not cumulative, and if before a jury would produce a different verdict; and where such testimony was unknown to the plaintiff and he had used due and proper diligence to procure it.

5. A common carrier will not be liable for injury to a horse occasioned by the improper or unwarrantable interference of the plaintiff or his agent, with the management of the car by the servants or employees of the company.

This was an appeal, by the plaintiff below, from the judgment of the circuit court of Jefferson county, rendered at the August term, 1868, of said court, wherein Hezekiah Roderick, was plaintiff, and the Baltimore and Ohio Railroad Company defendant. The Hon. Ephraim B. Hall, judge of said circuit court, as organized under the Constitution of 1863, presided at the trial below.

The facts are sufficiently stated in the opinion of the Court delivered by Paull, Judge.

Charles J. Faulkner, for appellant.

George H. Lee, for appellee.

PAULL JUDGE.

In 1865, an action was instituted by the plaintiff, Hezekiah Roderick, against the defendant, in the circuit court of Jefferson county, for injuries received by a horse of the plaintiff, while in the course of transportation from Harper's Ferry to Baltimore. A declaration in case was filed, and a common order taken and confirmed. At the April term of the court, leave was given to the plaintiff to file an amended declaration, during the term. No record or entry, made by the clerk, indicates that this amended declaration was filed; but a declaration in assumpsit appears in the printed record, and from affidavits found therein, it appears that this declaration was filed; and from a manuscript record, it appears that the plea of non-assumpsit was filed to this declaration, and plaintiff replied generally and issue was joined thereon. This amended declaration is complete in itself, and does not purport to be filed merely as an additional count to the former; nor is the former in any way adopted by, or made part of, the same; and the amended declaration is, as before stated, in assumpsit, while the former is in case. In this state of the pleadings, the former declaration may be regarded as withdrawn or abandoned. This last, or amended, declaration claims damages to the amount of $1,900. On the pleadings and issue thus made, a jury was impanelled and a trial had, at the October term, 1866, in which a verdict was rendered for the plaintiff for $1,500--and judgment rendered. At the same term, the defendant moved the court to set aside the verdict and judgment, on the grounds set forth in the record, and at the April term of the court, 1867, this was done, and a new trial awarded to the defendant; and, to this ruling of the court, the plaintiff excepted.

At the June term of the court, 1867, leave was given to the plaintiff to file, within forty days, an amended declaration. The record does not indicate, from any entry of the clerk, or from any other evidence, that this amended declaration was ever filed; or, if filed, does it appear that any other plea was filed in the cause, other than the plea of non-assumpsit, which had been filed to the second declaration.

At the April term, 1868, a jury was sworn, to try the issue joined between the parties, and rendered a verdict for the plaintiff for $1,200. Whether this issue was made upon the first, or second, amended declaration, it is not necessary, or perhaps proper, in view of the subsequent proceedings and the opinion reached by this Court, now to determine. If it was the issue made under the pleadings in the former trial, there was no objection to it. If the second amended declaration was filed, the plea of non-assumpsit not being withdrawn, would stand as a plea to it; Eppes Ex'or v. Demoville, Adm'r, 2 Call, 22. In either case the parties were at issue on their pleadings; and even if the plea of non-assumpsit to the last declaration was informal, it is too late to take advantage of it after verdict; Hunnicutt v. Carsley, 1 H. & M., 153.

At the same term, (April, 1868,) a motion was made, by the defendant, to set aside this verdict and grant a new trial, for the reasons, or on the grounds, set forth in the record: First, because said verdict was contrary to the evidence; Second, because said verdict was contrary to law; Third, because said verdict was without evidence to support the same; Fourth, because said verdict was contrary to the instructions of the court; Fifth, because of newly discovered evidence.

At the August term, 1868, this motion was granted and a new trial awarded; and, to this order of the Court, the plaintiff excepted. The bill of exceptions sets forth the affidavits of A. B. Wood, in regard to newly discovered testimony, and the facts and evidence produced upon the trial.

On the twenty-fourth day of July, 1869, notice was given and service of the same accepted by the defendant's counsel, that an appeal had been taken from an order of the circuit court granting a new trial in this cause, and on the same day a bond is filed by the plaintiff, the condition of which recites that the plaintiff has sued out an appeal " from an order of the circuit court of Jefferson county granting a new trial and setting aside the verdict of the jury" in this cause.

It is obvious that the appeal has not been taken from both orders of the court granting the two new trials, but from one only; and the plaintiff is entitled to have his appeal but from one order considered; from which order the appeal was taken is not indicated in any manner, and it is but natural and proper to infer, and to hold, that the appeal is from the order granting the last new trial, as with its result the plaintiff is satisfied, as well as with the former, and equally objected to the court interfering with the verdict. At all events, there can be no ground of complaint, as the plaintiff himself has failed to indicate from which order his appeal was designed to be taken.

Was there error in the court below in granting the last new trial, is the only question now remaining for determination. In support of the action of the court,...