Wash. v. The B. & O. R. R. Co.

• Decision Date: 20 November 1880
• Citation: 17 W.Va. 190
• Court: West Virginia Supreme Court
• Parties: Washington v. The B. & O. R. R. Co.

17 W.Va. 190

Washington

v.The B. & O. R. R. Co.

Supreme Court of Appeals of West Virginia.

Decided November 20, 1880.

1. Negligence is the doing of something, which under the circumstances a reasonable person would not do, or the omission to do something in discharge of a legal duty, which under the circumstances a reasonable person would do, and which act of commission or omission as a natural consequence directly following produces damages to another.

2. Negligence is generally a mixed question of law and fact; but what particular facts or conduct constitute or amount to negligence is generally a question of fact for the determination of the jury from all the evidence, rather than a question of law for the determination of the court; and the most the court can ordinarily do, when the question of care or negligence depends upon a variety of circumstances, is to define the degree of care and caution required by the law and leave to the practical, judgment of the jury the work of comparing the acts and conduct of the parties with the duties required of them under the circumstances. Yet there may be some cases where the question of negligence may be properly one of law for the court, as where; the case presents some prominent act, not depending upon surrounding circumstances for its quality, and in regard to the effect and character of which no room is left for ordinary minds to differ. But ordinarily the only efficient control the court can exercise over the jury in their determination of what is negligence is in the power of the court to set aside their verdict, where it is based on a false assumption of what is negligence.

3. The cause of an injury in the contemplation of law is that which immediately produces it as its natural consequence; and therefore if a party be guilty of an act of negligence, which would naturally produce an injury to another, but, before such injury actually re suits, a third person does some act, which is the immediate caus of the injury, such third person is alone responsible therefor, and the original party is in no degree responsible therefor, though the injury could never have occurred but for his negligence. The causal connection between the first act of negligence and the injury is broken by the intervention of the act of a responsible party, which act is in law regarded as the sole cause of the injury according to the maxim "Injure non remota causasedproximo, spectator?

4 It is a general if not a universal rule, that, if the plaintiff has been guilty of contributory negligence, he cannot recover.

5 By contributory negligence is meant such negligence on the part of the plaintiff as contributes to the injury, that is, directly in part causes it.

6. It is therefore not contributory negligence for the plaintiff to be guilty of a negligent act, which might have produced the injury, if, before it actually results, the defendant is guilty of some negligent act, which "was the immediate cause of the injury, even tliough no damage could have resulted to the plaintiff, had he not been originally negligent.

7. To bar the plaintiff from recovery, his alleged act of negligence must be such as he could reasonably anticipate would result in his injury.

8. The owner of horses in this State is not chargeable with an unlawful act or with negligence in allowing them to get upon a railroad track, if it be unenclosed. But he by so doing takes the risk of their loss or injury by unavoidable accident. But if killed by the negligence of the servants of the railroad company in running the train, it is responsible.

9. In such a case the servants of the railroad company are bound to use ordinary precaution to discover that the horses are on the track, as well as to avoid injuring them after they are seen.

10. In such a case if the plaintiff be present and fail to give any signal to the approaching train or to drive his horses off the track, when he could have done so, the company would still be responsible, if the engineer of the train saw the horses on the track in ample time to avoid injuring them, or could have so seen them in such ample time by the use of ordinary care. The plaintiff under such circumstances could not reasonably anticipate, that the engineer of the company would be guilty of such negligence, and therefore he cannot be considered as contributing to the accident.

Writ of error and supersedeas to a judgment of the circuit court of the county of Jefferson, rendered on the 28th day of March, 1878, in an action at law, in which Ella B. Washington was plaintiff and The B. & O. r. R. Co. was defendant, allowed upon the petition of said company.

Hon. John Blair Hoge, late judge of the third judiceial circuit, rendered the judgment complained of.

Green, President, furnishes the following statement of the case:

On August 29, 1874, Ella B. Washington instituted in the circuit court of Jefferson county an action on the case against The Baltimore and Ohio Railroad Company claiming $450.00 damages. Her declaration alleged, that on August 15, 1874, she was possessed of three valuable horses in said county, which were then without any fault of the plaintiff on the railway of the defendant, and that the defendant by its servants so carelessly, unlawfully and improperly ran its steam-engine, that by its carelessness and negligence the steam engine then and there struck and ran over these three horses of the plaintiff and thereby wounded one of said horses and killed the other two. The defendant demurred to this declaration, and the court overruled the demurrer; and the defendant thereupon pleaded not guilty, and issue was joined thereon. This issue was tried by a jury, who rendered a verdict in favor of the plaintiff for $200.00. The defendant moved the court to set aside the verdict and to grant it a new trial, which motion the court overruled; and on March 28, 1878, the court rendered a judgment against the defendant in accordance with this verdict. To this judgment a writ of error and supersedeas was awarded by this Court.

It appears by the record, that there was evidence of-ered by the plaintiff, which proved, that on August 24, 1874, just before an express train going east was due, she was sitting at an upper window of her house, which overlooked the railroad for three fourths of a mile, when she discovered that her two grown horses and a colt had escaped from her yard into her meadow, through which the railroad ran; and at the same time she "heard her brother calling a servant and saw her little boy running down the hill trying to get the stock back; that her brother, son and servant continued their efforts to drive the horses back; but they ran on down the meadow and came upon the railroad-track just above a cattle-stop between the meadow and the adjoining field below; that just as the horses got on the railroad track she heard the train approaching at a crossing a distance above of seven hundred and seventy yards; that it ran at its usual speed, no whistle being blown, nor, as far as she could judge, was any attempt made to apply the brakes; that the railroad-track where the accident occurred was perfectly straight for five hundred and fifty-two yards, and there was a full view of the track for six hundred and sixty yards above the place, where the horses were killed; that the parties engaged in endeavoring to get the horses off the track and to drive them back into the yard did their best to effect their object but failed; but none of them made any effort to signal the train; that an alert engineer could have seen these parties endeavoring to get the horses off the track, and that the train could have been stopped in a space of three hundred yards; that the horses had gotten out of the yard through a gate which some one had left open.

The defendant on the contrary introduced evidence to show, that the engineer first saw the horses when the train was within thirty or forty yards of this cattle-stop; that the train was running thirty or thirty-five miles an hour; that as soon as he saw the horses he blew the whistle and threw on the air-brakes; that when the train got within twenty or thirty yards of a certain culvert, the horses ran upon the track and tried to cross on the culvert, when they were struck; that the train was stopped before it had entirely passed over the culvert. The engineer testified, that he was watching the track, and when he first saw the horses, they were eating in the fence corner. The defendant also introduced evidence to prove, that the train could be stopped with the brakes used in eight hundred or one thousand feet running at the speed at which it was running. The whistle was blown, the air-brakes applied, and the train stopped within this distance.

The defendant's counsel moved the court to grant these instructions marked A, B and C, as follows:

"defendant's instruction "a."

" The court instructs the jury that if ihey believe from the evidence that after the discovery by the plaintiff of her horses upon or near the road of defendant, and in a position of danger, she by the use of due diligence on her part and that of her servants could have driven her said horses off from said road and prevented their being killed or injured by defendant, or could by the use of due diligence on her part and that of her servants have warned the defendant of threatened danger by signal or otherwise, and thus have prevented their being killed or injured, and she failed in either respect so to do, then the plaintiff is guilty of contributory negligence, and cannot recover.

''defendant's instruction "b."

"The court instructs the jury that there is no law in this State by which railroad companies are required to fence their roads for the protection of other persons' domestic animals; that domestic animals found upon the tracks of such roads are wrongfully there; and that when discovered, the first and paramount duty ofthe engineer is to provide for the safety of passengers and...