Trippett v. Monongahela West Penn Public Service Co.
| Decision Date | 03 November 1925 |
| Docket Number | 5417. |
| Citation | 130 S.E. 483,100 W.Va. 319 |
| Parties | TRIPPETT v. MONONGAHELA WEST PENN PUBLIC SERVICE CO. |
| Court | West Virginia Supreme Court |
Submitted October 27, 1925.
Syllabus by the Court.
Objection to evidence, unless made the subject of special bills of exceptions, or specifically presented to the trial court as grounds of a motion to set aside the verdict and for a new trial, will not be considered on writ of error to this court.
On the trial of an action against a carrier of passengers for personal injuries to a boy over eight years of age, resulting from his jumping or falling off a moving car, and involving the defense of contributory negligence, the age of the boy is not the only element to be considered by the court and jury. If previously warned by parent and conductor and possessed of sufficient intelligence and understanding to appreciate the dangers of leaving a place of safety on the car and going suddenly and unobserved by the conductor to a position of danger on the platform or steps of the car, and just before reaching his stopping place or destination, he jumps or falls off the car, the question of his contributory negligence is one of fact for the jury.
Where the evidence, as in this case, justifies the theory of contributory negligence, relied on as a defense, the defendant is entitled to instructions to the jury fully covering all phases of the evidence in the case bearing on the subject of contributory negligence.
An instruction to the jury in such a case as is presented here which would make the carrier an absolute insurer of the safety of the passengers, is erroneous and constitutes reversible error.
The high degree of care imposed upon a carrier of passengers is more strictly applicable to some affirmative act or omission of duty toward the passenger than to the control of his person or conduct after he has been received and accepted as a passenger.
The obligation of carrier to passenger does not run into the range of unreasonableness or impossibility.
A binding instruction to the jury proposed by plaintiff, ignoring defendant's theories of defense, are proper only when its form and effect would be to make such theories inapplicable to the case.
Instructions on behalf of plaintiff, which ignore the theories of defendant or narrow their scope covered by the pleadings and evidence, constitute reversible error.
Without allegation of a ground of liability having foundation in the evidence, it is reversible error to submit instructions to the jury predicated on such theory.
Error to Circuit Court, Wood County.
Action by C. L. Trippett, as administrator of the estate of his deceased son, against the Monongahela West Penn Public Service Company. Judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and new trial awarded.[Copyrighted Material Omitted]
James A. Meredith, of Fairmont, and Kreps, Russell, Hiteshew & Adams, of Parkersburg, for plaintiff in error.
C. M Hanna, of Parkersburg, for defendant in error.
The action was in case for alleged negligence of the defendant resulting in the death of plaintiff's son, a boy past eight years of age, while a passenger on one of defendant's interurban cars, on Juliana Street between Third and Fourth streets, in the city of Parkersburg.
On the trial before the court and a jury, plaintiff recovered a verdict and judgment for two thousand three hundred and seventy-five dollars, to reverse which defendant obtained this writ of error.
The declaration, containing eight counts, and all with much pleonasm, predicates right of recovery on the relationship of passenger and carrier, the alleged duties of the one to the other in that relationship, and in effect charges: first that the defendant, not regarding its duties, did not use due and proper care and safely carry plaintiff's decedent, Harold Trippett, to his destination, in that, when he reached the corner of Fourth and Juliana streets in said city, its conductor in charge of the car, which had no outside vestibule doors, failed to keep or prevent the said Harold Trippett from jumping or falling from the car platform to the street, but that while the said car was in motion, and before he had reached his destination, at the corner of Third and Juliana streets, he was allowed to go from the car and the rear platform thereof down onto the steps and to the third or lower one thereof, and when near the point of intersection of said Third and Juliana streets, to jump or fall off, and be violently thrown to the pavement, and to sustain severe injuries about his head, from which he died.
One or more of the numerous counts, in addition to the allegations of other duties and breaches thereof towards the passenger, undertakes to introduce the alleged duty on the part of the defendant, and the breach thereof, to use due and proper care to keep competent agents, servants and employees in the care, custody and control of its car upon which said Harold Trippett was received and was riding, and as a breach of that duty charges that the car upon which said Trippett was so received and riding was at the time of his injuries in charge of a negligent and reckless agent, and that when said car was near the corner of said Third and Juliana streets, and in motion, and before said Trippett reached his destination, said agent suffered him to go upon the rear platform of said car and down upon the steps thereof, and to step off or be thrown off violently upon the pavement and injured about his head, from which injuries he died.
After the verdict, the defendant moved the court to set aside the verdict, upon the following grounds: (1) Because contrary to the law and the evidence in the case; (2) because of the admission of certain testimony, questions and answers, introduced by plaintiff over defendant's objection, not specifying them; (3) because of the error in the giving of instructions offered by plaintiff over the objection of defendant; (4) because of the denial of instructions proposed by defendant; (5) because of other errors apparent on the record.
The specific errors assigned and relied upon for reversal in the petition for the writ, and in the brief and argument of counsel, are the following: First, the alleged improper admission of evidence of Bonna Trippett; second, the alleged improper examination of the witness William Dunlap by the court; third, refusal of the court to give instructions numbered 2, 7, 8, and 9 requested by defendant; fourth, the giving of plaintiff's instructions numbered 4, 5, 7, 10, 11, 15, 16, 17, 19, 22, 23, 24, 25, 26, and 29, over defendant's objection; fifth, the overruling of defendant's motion to set aside the verdict and grant it a new trial.
The evidence of Bonna Trippett, the fourteen year old sister of the deceased, objected to, and who was a passenger on the car with him at the time of the accident, counsel avowed was to show the recklessness and incompetency of the conductor in charge of the car. Her evidence was to the effect that defendant had two conductors on the cars on which she and her brother were accustomed to ride, one a Mr. Anderson, and the other the conductor in charge of the car on which they were riding at the time of the accident, but whose name she did not know; that on the car that day other children were allowed on the platform and steps by the conductor; that when the car was in charge of Conductor Anderson, and extending over a period of months preceding the accident, he would catch hold of their arms and hold them when they came to the door, and wouldn't let them off.
By this evidence and a comparison of the conduct of Anderson when in charge of the car, with that of Dunlap, and the evidence of Dunlap himself given upon examination by the trial court, plaintiff sought to establish the fact of incompetency or reckless negligence. It is observed that there is no specific allegation of incompetency on the part of Dunlap, or of the servants in charge of the car, but only that the car was in charge of a negligent and careless agent; and it is not alleged that these characteristics, if true, were known to the defendant company, nor that it did not exercise ordinary care in employing Dunlap.
The question is thus attempted to be presented, whether recklessness or negligence of one employed may be established by evidence of the way in which another employee engaged in like service discharged his duties. We find no evidence in the case that Dunlap was incompetent or known to be incompetent by the defendant, unless this evidence relating to the conduct of Anderson be such, or the admission of Dunlap in the examination by the trial judge amounts to evidence of such incompetency. The superintendent of transportation swears that Dunlap, who had been in the employ of the defendant for about eight years, was always regarded as a careful and competent conductor; that he had never before had an accident. On the examination of Dunlap by the trial judge, he testified:
Objection to the question was overruled, but the witness did not answer it. It was followed by another question and answer, as follows:
There was no objection to this question, nor to those following, and the witness answered:
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