Thomas v. Monongahela Valley Traction Co.

• Decision Date: 28 March 1922
• Citation: 90 W.Va. 681
• Court: West Virginia Supreme Court
• Parties: Howard Thomas v. Monongahela Valley TractionCompany.

90 W.Va. 681

Howard Thomas

v. Monongahela Valley TractionCompany.

Supreme Court of Appeals of West Virginia.

Submitted March 21, 1922.

Decided March 28, 1922.

1. Evidence Opinion of Witnesses Admissible When Impossible to Present Facts in Entirety which Produced Particular Result after Pertinent Facts are Detailed as Fully as Pos- sible.

Ordinarily the opinions of witnesses should not be received in evidence, but when it appears that it is impossible to present the facts which produced a particular result to the jury in their entirety, so as to permit them to form as intelligent judgment thereon as though they had witnessed the occurrence, it is not error to allow a witness to give the impression made upon his mind at the time by the occurrence in quired about, after he has detailed as fully as possible the pertinent facts in regard thereto as the same were observed by him. (p. 684).

2. Carriers of Passengers Degree of Care Required of Presumption that Derailment was Caused by Negligence.

It is the duty of a common carrier of passengers to exercise the highest degree of care of which human foresight is capable in the operation of its cars, and in the maintenance of its tracks and roadbed; and where a passenger is injured by reason of one of its cars becoming derailed, there is a presumption that such derailment was caused by the negligence of the carrier, (p. 687).

3. Same Negligence Presumption of in case of Derailment Overcome by Showing High Degree of Care in Maintenance of Track and Operation of Cars or by Cause Beyond Control of Carrier.

This presumption of negligence may be overcome by the carrier by proving to the satisfaction of the jury that it did exercise the high degree of care required of it in the maintenance of its tracks and appliances, and in the operation of its cars, or by attributing the accident to a cause beyond its control. (p. 687).

4. Same Only Required to Exercise Reasonable and Ordinary Care to Discover Objects Off of Right of Way which may Become Dislodged and Obstruct Tracks.

A common carrier is not required to exercise the highest degree of care of which human foresight is capable to discover objects off of its right-of-way upon lands adjacent thereto which may possibly become dislodged and obstruct its track, but it is only required to exercise in this regard reasonable and ordinary care. (p. 688).

5. Same.

Where a carrier of passengers attempts to excuse itself for the results of an injury caused by a derailment of one of its cars by showing that such car was derailed by an obstruction rolling down upon its track from off the hillside above its right-of-way, it is error to instruct the jury on motion of the plaintiff that the carrier under all circumstances is required to exercise the highest degree of care to discover and prevent obstructions upon its track from any source. (p. 688).

6. Instructions Inconsistent Binding Instructions Should not be Given even Though one of them States the Law Correctly.

It is error to give inconsistent binding instructions, even though one of them correctly states a controlling proposition of law, for the reason that the court is unable to determine whether the jury, in arriving at their verdict, followed the law as laid down in the instruction correctly propounding the proposition, or followed the directions given in the instruction incorrectly propounding it. (p. 691).

Error to Circuit Court, Marion County.

Action by Howard Thomas against Monongahela Valley Traction Company, for a personal injury to him while a passenger on one of defendant's interurban cars. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Tusca Morris, 0. E. Swarlz and A. J. Colborn, for plaintiff in error.

Harry Shaw and Walter R. Haggerty, for defendant in error.

Ritz, Judge:

By this writ of error the defendant seeks reversal of a judgment in favor of the plaintiff for a personal injury sustained by him while a passenger on one of the defendant's interurban cars by reason of the same becoming derailed and turning over an embankment.

On the 31st of December, 1918, the plaintiff became a passenger on one of the defendant company's cars being operated from Mannington to Fairmont. The car upon which the plaintiff was a passenger left Mannington about 8:35 P. M., and after it had travelled a little more than half of the distance between Mannington and Fairmont, at a point on the defendant's line where the track runs at the base of a steep hill and around a bend of Buffalo Creek, the car became derailed and turned over the embankment with one end thereof in the creek. The plaintiff contends that he sustained an injury to his head and severe injuries to his elbows and knees in this accident. He was in the front end of the car, that being the end that went down the embankment, and the other passengers were thrown upon him which, according to his contention, caused his injuries to be more severe than those received by others who were in the car at the time. The plaintiff brought this suit to recover damages for his injuries, contending that the accident was due to the failure of the defendant to properly maintain its tracks and rolling stock, and to properly operate the car on the occasion of the derailment, A trial resulted in a verdict and judgment in his favor for the sum of $1000.00.

The contention of the defendant is that the derailment was caused by a stone about the size of a nail keg rolling down the steep embankment from off the lands adjoining its rightof-way, and alighting upon the track immediately in front of the car, Avhich caused the car to be derailed and turned over the embankment when it ran upon the stone. The employe who was operating the car at the time states that he saw the stone bounding down the side of the hill just before it hit the roadbed, and that he immediately applied the emergency brake, but was unable to stop until the car ran upon the stone. In this statement he is corroborated by another witness who was in the front vestibule with him at the time. The evidence introduced by the plaintiff shows that the car was running at a very high rate of speed at the time of the derailment. In fact, some of the witnesses say that while they had travelled on this interurban line frequently, they never before nor since were on a car that travelled as fast as this one was going at the time. The plaintiff was allowed to testify that just before the accident the car was swinging from side to side because of the excessive speed at which it was being run, and that it was from this cause that the derailment occurred. The curve in the track at the point of derailment was toward the creek into which the car turned, for which reason the defendant insists that the derailment could not have been caused by fast running, for if that had been the case the car, instead of going over the creek bank, would have run into the embankment on the opposite side, but the plaintiff contends that this would not necessarily be so; that the probability is that the rear truck of the car first became derailed and ran in toward the bank opposite the creek, and caused the front truck to run over the bank on the opposite side. One of the plaintiff's witnesses testifies that he heard one of the employes say immediately after the accident that the derailment was caused by a stone on the track, and that after taking his wife home he returned to the point of the accident for the purpose of making an examination to determine whether or not this was correct; that he made an examination at the place of the accident about a half hour to an hour after it happened, and before there had been any disturbance of the place by the defendant's workmen, and that he found no stone, nor any indication of one being upon the track, to which the derailment could be attributed.

The defendant objected to the plaintiff being allowed to state that the car was derailed because of fast running, its contention being that this was the very matter to be determined by the jury, and that the plaintiff should not have been allowed to give his opinion thereon. Ordinarily a witness should be required to testify to facts within his knowledge, and not give his opinions, but there are exceptions to this rule. In those cases where it is difficult, if not impossible, to convey to the jury the exact situation, it is sometimes permissible to allow the witness to give the impression made upon his mind by the occurrence which he observed. This is not really giving an opinion formed by him upon consideration of the facts observed, but is simply conveying to the jury the impression which was produced at the time by the occurrence. Wigmore on Evidence, § 658; Kunst v. City of Grafton, 67 W. Va. 20; Walker v. Strosnider, 67 W. Va. 39-71; marcher v. Oil Co., 81 W. Va. 587. Did the evidence of the plaintiff complained of amount to any more than this? He testified about what he thought the speed of the car was, to-wit, about thirty miles an hour; that it was running very fast; that it was swinging from side to side; and he attempted to state as best he could just exactly what movements the car was making; and then, in answer to a question, give the impression produced upon his mind from the derailment of the car under these circumstances. We do not think the statement was of very great probative force, and ordinarily it is better not to introduce such testimony, but we cannot say that under the facts disclosed this evidence was not properly admitted.

It is also contended that the court erred in permitting the plaintiff to testify that he had not been able to work since the accident, due to the injuries received therein, the contention being that this was simply an expression of opinion upon his part as to the cause of his disability. We hardly think this evidence is subject to that criticism. Plaintiff testified that at the time of the accident he was in good health, and was suffering from no disability of any kind....