Turner v. Norfolk & W. R. Co

• Citation: 22 S.E. 83,40 W.Va. 675
• Parties: TURNER. v. NORFOLK & W. R. CO.
• Decision Date: 17 April 1895
• Court: Supreme Court of West Virginia

22 S.E. 83
40 W.Va. 675

TURNER.
v.
NORFOLK & W. R. CO.

Supreme Court of Appeals of West Virginia.

April 17, 1895.

Injury to Railroad Employe?Collision at Curve?/span>Failure to Give Signal?/span>Sufficiency of Declaration?/span>Negligence of Vice Principal?/span>Death of Minor?/span>Damages.

1. The allegation in a declaration that the defendant, "without ringing the bell or blowing the whistle, or giving any warning whatever, " is a general allegation, under which the plaintiff may introduce any evidence tending to prove any negligence on the part of the defendant wherein it failed to give plaintiff warning of an approaching train.

2. If it plainly appears that the defendant could not have been injured by the modification of an instruction asked, even though the modification was unnecessary, the failure to give such instruction without such modification is not sufficient cause for the reversal of the judgment.

3. In determining whether a boy 10 years of age was guilty of contributory negligence, the jury have the right to take into consideration his age, capacity, and experience, and although he may have been guilty of an act which in an adult would have amounted to an assumption of the risk of injury, and a waiver of the duty the master owes him, yet he cannot be held to have assumed any such risk or waived any such duty which one of his age, discretion, and experience could not fully comprehend and appreciate.

4. A minor has the right to rely upon the superior skill and knowledge of the foreman having authority over him, and if, in obedience to such foreman's directions, he runs into unknown dangers, against which it is the duty of the foreman to warn him, but which duty such foreman negligently fails to perform, he cannot be held to be guilty of contributory negligence or to have assumed the risk of such dangers.

5. The action of the jury in assessing damages in case of the death of a person by the wrongful act, neglect, or default of another is not reviewable, as no damages allowed by the jury within the limit fixed by the statute can be deemed excessive, their determination of this question being absolute and conclusive as to what damages are fair and just, unless the verdict evinces passion, prejudice, partiality, or corruption on the part of the jury.

6. In all cases of negligence the law governing the assessment of exemplary, punitive, or vindictive damages is the same whether death result or not.

(Syllabus by the Court.)

Error to circuit court, Wayne county.

Action by Nathaniel Turner, as administrator, against the Norfolk & Western Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Campbell & Holt, for plaintiff in error.

Marcum, Peyton & Maccum, for defendant in error.

DENT, J. Nathaniel Turner, administrator of the personal estate of Pearly Turner, deceased, instituted suit in the circuit court of Wayne county on the 11th day of February 1892, against the Norfolk & Western Railroad Company, for the sum of $10,000 damages on account of the death of said Pearly Turner, and on the 8th day of October, 1892, recovered a judgment for the sum of $4,500, being the amount of damages assessed by a jury. The defendant, upon a writ of error to this court, insists on the following errors: "(1) The court erred in granting the plaintiff's instructions numbers 4 and 5. They were each irrelevant and misleading, in that neither was predicated upon the specific act of negligence charged in the plaintiff's declaration. (2) If it were proper for the court to grant the plaintiff's instructions numbers 4 and 5, then it was error to refuse to grant your petitioner's instructions numbered 1 and 2, as by it prayed. (3) The court erred in not setting aside the verdict as contrary to the law and evidence. (4) The measure of damages in case of death is the value of a man's life to his estate. The record contains no evidence whatever of the deceased's earning capacity, and the verdict was, in consequence, not only excessive, but absolutely without foundation, and should have been set aside."

The material facts in this case are as follows: On the ——day of February, 1892. Pearly Turner, a boy 16 years of age, of average intelligence, industrious, obedient, and healthy, while in the employ of the defendant, under the direction and control of a foreman named Alley, met his death in a collision between an extra engine and a hand car, at a curve about five miles from Wayne Courthouse. The deceased was on the hand car with a crew of employes, all of whom, at the time of accident, were acting under the orders and immediate supervision of said foreman. The foreman went ahead of the hand car to the curve, and without going himself or sending some one else to ascertain whether an extra was coming, as the rules of the company required him to do, got on the hand car and started around the curve, and met the engine near the middle thereof. All escaped except the deceased, who was killed outright. The evidence is conflicting as to whether the whistle of the engine was sounded or the bell was rung; the engineer and crew with him testifying that the whistle was sounded and the bell rung at a road crossing 800 or 900 feet from the curve, and that such sounding of the whistle was for the curve, as he, the engineer, was on the lookout for a gang of

[22 S.E. 84]

carpenters. None of the crew on the hand car heard either signal, and some other parties testify that they did not hear either whistle or bell, although in position to do so. The deceased had been in the employ of the company for about five months, had passed over the road frequently, and had often flagged trains for the foreman. His father was dead, but his mother was living.

1. The instructions referred to in the first assignment of error are as follows, to wit: "No. 4. The jury are instructed that when a railroad company puts a foreman in charge of a gang of laborers, with power to discharge them, subject to the approval of the supervisor, and makes it the duty of said foreman to see that these laborers perform their duty faithfully, such foreman must, in the performance of all his duties to those laborers under him, be regarded as the representative of the railroad company, and if, through his neglect of duty, one of these laborers, in the performance of his duty, is injured without negligence upon his part, such laborer may recover of the railroad company the damages he has sustained, caused by the negligence of such foreman without the knowledge of such laborer. No. 5. The court instructs the jury that the plaintiff's intestate, Pearly Turner, had the right to assume that his foreman, E. Alley, would give all proper attention to his safety, and that he would not be carelessly and needlessly exposed to risks and damages not necessarily resulting from his occupation, and which might have been prevented or much diminished by ordinary care and precaution on the part of his master or his representative, in this case Foreman Alley." The objection to these instructions is an alleged variance between the declaration and proof. The part of the declaration referred to is as follows: "While said plaintiff's intestate was engaged in propelling and operating the said hand car on defendant's track on said section, without any default or negligence on his part, and without any knowledge of the danger to which he was then and there exposed, the said defendant wrongfully, negligently, and injuriously ran and caused to be run a certain steam locomotive engine around a sharp curve and through a deep cut, without ringing the bell or blowing a whistle, or giving any warning whatsoever, with great force and violence over, upon, and against the said hand car, upon which said plaintiff's intestate was as aforesaid, whereby and by reason whereof the plaintiff's intestate was bruised, wounded, and mangled, from which said wounds, bruises, and injuries afterwards, to wit, on the day and year aforesaid, he died." The defendant insists that the instructions were not proper, because the jury, under this declaration, could not find the defendant guilty of an act of negligence committed by Foreman Alley in not taking the required steps to ascertain and warn the deceased of the approaching train. This was a duty the defendant owed to the deceased and which it imposed upon his foreman, and certainly comes within the general allegation of the declaration, "without any warning whatsoever." Foreman Alley was the agent of the defendant as to giving this warning, and his failure to do so was the failure of the defendant. It was necessary for the jury under this declaration to have before them and take into consideration any and all failures on the part of the defendant to warn deceased of the approaching train, and, if the defendant had warned him through any of its agencies, it would have been sufficient, although all the others had been guilty of negligence in this respect; and the declaration is founded on the fact that the defendant failed in its duty, and, if it had not been broad enough to cover the negligence of Foreman Alley, it would have been bad on demurrer or motion to exclude the evidence. The demurrer was overruled, and properly so, and no motion was made to exclude the evidence. The evidence which justifies the instructions was first introduced by the defendant on its theory of the case, to show contributory negligence on the part of deceased, and, being in for its purposes, it could not have it excluded because it sustained the plaintiff's case. The instructions were, therefore, proper to meet the defendant's claim of contributory negligence, if for no other purpose. The defendant cannot relieve itself in a case of this character, resulting from the negligence of its servants, by showing that others of its servants were equally or more negligent, and, if they had not been so, the accident would not have happened, unless it shows that the deceased contributed to the latter's negligence...