Schoonoveir v. Baltimore & O. R. Co
| Citation | 69 W.Va. 560,73 S.E. 266 |
| Court | Supreme Court of West Virginia |
| Decision Date | 24 October 1911 |
| Parties | SCHOONOVEIR. v. BALTIMORE & O. R. CO. |
Rehearing Denied Jan. 12, 1912.
(Syllabus by the Court.)
1. Judgment (§ 273*) — Entry Nunc Pro Tunc.
A final judgment, rendered but not entered by reason of inadvertency of the clerk, may be entered by a nunc pro tunc order at a term of the court subsequent to the one at which it was rendered, provided the evidence of the rendition thereof is sufficient.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 525-541; Dec. Dig. § 273.*]
2. Appeal and Error (§ 134*)—Record—Correction.
A writ of error to such a judgment awarded and perfected before entry thereof may be sustained by the filing of a supplemental record in the appellate court, showing amendment by such nunc pro tunc order.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 898; Dec. Dig. § 134.*]
3. Railroads (§ 325*)—Injuries to Minors —Contributory Negligence.
In an action by an infant between 11 and 12 years old against a railroad company to recover damages for an injury sustained by the former on a highway crossing, or one treated as such, by the negligence of the latter, the trial court may hold the plaintiff barred by his contributory negligence, upon a proper application for such ruling, if the facts and circumstances of the case warrant it.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1029-1036; Dec. Dig. § 325.*]
4. Railroads (§ 325*)—Injuries—Contributory Negligence—Children.
In the use of highways, children must exercise such reasonable care, caution, and prudence for their safety as may be expected from them, in view of their immaturity. The standard or measure of duty in each case is determinable by the capacity ordinarily possessed and exercised by children of the age and development of the class to which the individual belongs.
[Ed. Note.—For other cases, see Railroads. Cent. Dig. §§ 1029-1036; Dec. Dig. § 325.*]
5. Railroads (§ 300*)—Operation—Injuries at Crossing—Duty of Railroad.
.In passing its train over a crossing provided by itself for public use, though not legally a public crossing, a railroad company must comply with the common-law requirements, imposed for the safety of persons using public crossings.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 955; Dec. Dig. § 300.*]
6. Railroads (§ 338*)—Operation—Injuries at Crossing—Injury Avoidable Notwithstanding Contributory Negligence.
Though a person injured on such a crossing by a train was himself in fault, his negligence does not preclude recovery for the injury, if the servants of the railway company in charge of the train could have discovered the danger and prevented the injury by keeping a lookout on the crossing and checking or stopping the train. In such case, their failure of duty is the latest negligence and the proximate cause of the injury.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1096-1099; Dec. Dig. § 338.*]
Error to Circuit Court, Cabell County.
Action by Clifford Schoonover against the Baltimore & Ohio Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.
Williams, Scott & Lovett, for plaintiff in error.
Vinson & Thompson, for defendant in error.
In an action of trespass on the case, brought by Clifford Schoonover against the Baltimore & Ohio Railroad Company, in the circuit court of Cabell county, for the recovery of damages for a personal injury, alleged to have been wrought by the negligence of the defendant, there was a demurrer to the evidence of the plaintiff, which the court sustained, after a conditional verdict had been found by the jury, assessing the damages at the sum of $3,000. Agreeably to the finding of the court upon the law of the case, an order was entered, sustaining the demurrer and giving the defendant a judgment for costs, but not dismissing the action. However, a writ of error was awarded, and the case submitted to the court as upon a final judgment. That this was not a final judgment in appellate law appears from Epstein v. Totten, 63 W. Va. 602, 60 S. E. 614; De Armit v. Whitmer, 63 W. Va. 301, 60 S. E. 136; Ritchie County Bank v. Bee, 60 W. Va. 386, 55 S. E. 380; Cbrley v. Corley, 53 W. Va. 142, 44 S. E. 132, 47 S. E. 145; Hannah v. Bank, 53 W. Va. 82, 44 S. E. 152.
After submission of the case in this court, however, the circuit court entered an order, reciting rendition of judgment of nil capiat at the time of the entry of the order above described and clerical omission to include it in that order, and entering the judgment nunc pro tunc. This raises the question of power in the trial court to amend its record, after perfection of a writ of error and submission in the appellate court.
Legally the inquiry divides into two parts, the first of which is whether a final judgment can be entered nunc pro tunc; and the other whether an amendment so made will sustain the writ of error. Such an amendment may be made. Vance v. Railway Co., 53 W. Va. 338, 44 S. E. 461; Ninde v. Clarke, 4 Am. St. Rep. 832, note, pp. 828-830. In this valuable note, we find the following proposition, sustained by numerous decisions: "A court which has ordered a judgment which the clerk has failed or neglected to enter in the record has power, even after the term at which it was rendered has passed, to order the judgment so rendered to be entered nunc pro tunc, provided there be satisfactory evidence that the judgment was rendered as alleged, and of the nature and extent of the relief granted by it." Sufficiency of the evidence upon which the amendment was made is not questioned.
That an amendment of the record of a case in the trial court, pending a writ of error, may be carried into the record in the appellate court and made effective there is also affirmed by authority. After such an amendment, carried up as aforesaid, the appellate court will act upon the record as corrected. Wells v. Smith, 49 W. Va. 78, 38 S. E. 547; Gauley Coal Land Ass'n v. Spies, 61 W. Va. 19, 55 S. E. 903; Hopkins v. Railroad Co., 42 W. Va. 535, 26 S. E. 187; 18 Enc. Pl. & Pr. 958. We find no authority inconsistent with this view. Hastily read, Tatum v. Snidow, 2 Hen. & M. (Va.) 542, may seem to be so, but it is not. Though the subsequent order therein entered recited omission of entry of the judgment by the clerk, the judgment was not entered nunc pro tunc and virtually dated back, as in this case, so as to work an amendment.
Reason and justice, as well as authority, sustain our conclusion. The defect resulted from mere inadvertence and was purely technical. Until the hearing on the writ of error, both parties proceeded under the impression that the judgment was technically, as well as substantially, final. Discovery of the defect then was matter of surprise to them, as, no doubt, it was to the trial court on the application for amendment. Correction thereof by amendment saves time and expense and facilitates disposition of business, without working injury in any respect.
The plaintiff, a boy about 11 1/2 years old was so badly injured on the track of the defendant company that one of his legs had to be amputated below the knee. The injury occurred at a point used as a crossing, but the status of that crossing is an element in the case. It would be in the line of Seventeenth street, of the city of Huntington, if extended northward so as to cross the railroad, but had never been established by the city as a street or public crossing. The general direction of the railroad at that point is east and west. On the south side thereof and west of Seventeenth street, running to the railroad at right angles, there was a park, boarded up along the railroad on one side, and along said street on another, in which a game of baseball was played on the day of the injury. The grandstand, occupied by spectators, was in the angle. Occasionally, foul balls would go over the fence, and boys on the outside recovered and returned them, in consideration of which they were admitted into the park. The plaintiff and a number of other persons were on the outside; some watching the game through cracks in the fence, and others looking over the fence from the tops of box cars, standing on a switch on the opposite side of the railroad track. A foul ball having gone over the fence and diagonally across the railroad in a northeasterly direction, and stopped a short distance beyond, from 15 to 30 feet, the plaintiff ran after it, and having obtained it ran back on the track, whence he threw it into the park, halting momentarily, some of the witnesses say. At this time, a train, consisting of an engine and two cars, drawn by the engine running backwards, was approaching from the east at the rate of 10 to 15 miles per hour. When the boy threw the ball, in apparent ignorance of its approach, the engine was not more than 60 or 70 feet distant. The train was going west, and he diagonally across the track in a southwesterly direction. Hence his face was turned from the train, but he went on the track without looking for an approaching train or engine. Wholly absorbed in what he was doing, he was oblivious of the train. Some witnesses testify that they and others, seeing the danger, called to him, but are unable to say he heard them, as there was much noise and confusion, both inside and outside of the park. As he left the track, the train, rushing on, caught his right foot and leg. Some distance east of the place of the injury there was a cattle pen, near which some witnesses say there were two long blasts of the whistle of the approaching engine, one east and the other west. Others say they never heard them. There is no evidence that any bell was rung as the train approached the crossing, and all the witnesses agree that just about the time the boy was struck two or three short sharp blasts from the whistle were heard. There was nobody on the tender of the backing engine, nor doenit appear that anybody on the engine...
To continue reading
Request your trial
- Smith v. Gould, 6942.
- Smith v. Gould
- Smith v. Gould, (No. 6942)
- Schoonover v. Baltimore & O.R. Co.