Watkins v. The Baltimore
| Decision Date | 10 June 1947 |
| Docket Number | (No. 9906) |
| Citation | 130 W.Va. 268 |
| Parties | Edward Watkins v. The Baltimore and Ohio Railroad Company, et al. |
| Court | West Virginia Supreme Court |
New Trial-
A motion to set aside a verdict and grant a new trial on the ground that a juror subject to challenge for cause was a member of the jury which returned it, must be supported by proof that the juror was disqualified, that movant was diligent in his efforts to ascertain the disqualification and that prejudice or injustice resulted from the fact that said juror participated in finding and returning the verdict. Such facts must be established by proof submitted to the court in support of the motion, and not from evidence adduced before the jury upon the trial.
Error from Circuit Court, Preston County.
Action by Edward Watkins against the Baltimore & Ohio Railroad Company and another for personal in- juries and damages to plaintiff's automobile as a result of grade crossing collision. To review a judgment setting aside a verdict in favor of defendants and granting plaintiff a new trial, defendants bring error.
Reversed and rendered.
F. E. Parrack and Charles V. Wehner, for plaintiff in error.
J. V. Gibson and Milford L. Gibson, for defendant in error.
Claiming damages for personal injuries and partial destruction of his automobile, Edward Watkins instituted this action in the Circuit Court of Preston County against The Baltimore and Ohio Railroad Company and The Morgantown and Kingwood Railroad Company, corporations.
The declaration contains two counts. The first count charges that defendants were primarily negligent in that they operated their locomotive at a dangerous and high rate of speed over the crossing where the accident occurred; that they failed to keep a lookout for persons using said crossing; that they failed to equip their locomotive with a light so as to illuminate the track in front of the locomotive; and that they failed to equip their locomotive with a steam whistle or bell, or, if so equipped, they failed to blow such whistle or ring such bell, when approaching within sixty rods of the crossing. The second count is in part a duplicate of the first count, except that it charges that defendant, The Baltimore and Ohio Railroad Company, negligently, recklessly and maliciously wounded plaintiff.
Defendants entered a plea of not guilty, and upon that issue, after hearing all the evidence for plaintiff and defendants, the jury found a verdict for defendants.
The verdict was returned on June 25, 1946, and a motion was immediately made by plaintiff to set aside the verdict.
On July 26, plaintiff, in support of his motion to set aside the verdict, made his affidavit in which it is stated that since the date of said trial and verdict, he had been informed and believed, that Clarence Elsey, a member of the jury which heard the case and returned the verdict, was, at the time of the trial, as well as prior to and after the same, in the employ of The Baltimore and Ohio Railroad Company. No other proof was offered in support of the motion to set aside the verdict. On August 5, the court filed the affidavit, set aside the verdict and granted plaintiff a new trial. This Court granted a writ of error to that judgment.
This litigation grows out of a collision between the automobile of plaintiff and a locomotive operated by defendant, The Baltimore and Ohio Railroad Company, at a public crossing located at or near Reedsville. The collision occurred on or about March 4, 1945, at approximately nine o'clock at night while plaintiff was travelling in his automobile from Reedsville to Arthurdale, where he resided. He approached the crossing through a "double S" curve, which ended at a point about three hundred feet from the railroad tracks. From that point the road was straight and unobstructed.
Plaintiff testified that he saw no train on the crossing, but did see two automobiles pass over the crossing ahead of him. In attempting to use the crossing, he collided with the front part of the locomotive, at or near the "pony trucks" of the locomotive, resulting in personal injuries to himself and almost complete demolition of his automobile. He was confined to his bed for two weeks on account of said injuries; was partially disabled for an additional two weeks; and was required to incur medical expenses in the sum of twenty-five dollars.
There is no testimony with reference to the excessive speed of the locomotive, nor the alleged failure of defendants to maintain a lookout. On the contrary, all of the testimony indicates that the locomotive was almost at a standstill when the collision took place, and the affirma- tive evidence is to the effect that the persons operating the locomotive kept a lookout.
The locomotive was equipped with headlights which were operated by means of a button in the locomotive cab. When moving forward, the headlight shone ahead, and, when moving to the rear, the headlight on the rear of the tender was employed to illuminate the tracks in that direction. Classification or marker lights were installed on the front of the locomotive, and were operated by a button on the front part of the locomotive outside the cab. All lights could be turned off from the engineer's cab. The locomotive was also equipped with a bell and whistle.
Plaintiff and his witnesses testified that no lights were burning on the front of the locomotive at the time of the collision, and that they did not hear the whistle blow nor the bell ring. Some of the witnesses, especially the engineer and fireman employed on the locomotive, testified that the forward headlight and classification lights were burning; that the bell was rung and the whistle blown one thousand feet away from the crossing, and again just before the locomotive moved over the crossing. There is considerable testimony to the effect that it was a foggy night, and other testimony to the effect that there was no fog at the scene of the collision.
Plaintiff testified that he had used the road frequently and was familiar with it; that he was "coasting" down a hill just before the collision occurred; and that his engine was "idling" just before the accident. Upon these facts the jury found a verdict for defendants as above stated.
It is to be observed that there is no evidence in the record connecting The Morgantown and Kingwood Railroad Company in any way with this accident, and, although there was an appearance for both defendants, we do not perceive any grounds of liability as to The Morgantown and Kingwood Railroad Company.
Defendants assign as error: (1) that the affidavit in support of the motion to set aside the verdict is insufficient, and that the motion should have been overruled on the showing made; and (2) that the peremptory instruction tendered by defendants and refused by the court should have been given.
Before discussing the first point of error assigned, we pause to state that there are clear distinctions between the disqualification of a juror as a ground for a motion to set aside a verdict, and a juror's misconduct during the trial as ground for a similar motion. These distinctions will appear hereinafter and will be discussed as fully as the case at bar warrants.
The general rule is that misconduct of a juror during the trial, prejudicial to the complaining party, is sufficient reason for the trial court to direct a mistrial, or to set aside the verdict of the jury of which the offending juror is a member. Upon a clear and satisfactory showing of such misconduct, induced or participated in by an interested party, prejudice is presumed, and, unless rebutted by proof, the verdict will be set aside. Legg v. Jones, 126 W. Va. 757, 763, 30 S. E. 2d 76; Flesher v. Hale, 22 W. Va. 44. See Pickens v. Boom Company, 58 W. Va. 11, 18, 50 S. E. 872; Mullens v. Lilly, 123 W. Va. 182, 13 S. E. 2d 634. Nothing appears in this record justifying a charge of misconduct against the juror Elsey.
But where, as here, the motion to set aside the verdict and grant a new trial is based upon the disqualification or incompetency of a juror, the burden is upon the party attacking the verdict to show: (1) that the juror was, in fact, disqualified or incompetent to serve as a juror in the trial of the case; (2) that the party so moving to set aside the verdict exercised due diligence in an effort to ascertain the disqualification or incompetency of the juror prior to the impanelling of the jury or the return of its verdict; and (3) that he was prejudiced or suffered an injustice by the fact that the disqualified or incompetent juror served on the jury. Wagoner v. Iaeger, 49 W. Va. 61, 38 S. E. 528; Garrett v. Patton, 81 W. Va. 771, 778, 95 S. E. 437; Burdette v. Goldenburg, 87 W. Va. 32, 104 S. E. 270; Malone v. Traction Co., 105 W. Va. 60, 141 S. E. 440. See Sweeney v. Baker, et al, 13 W. Va. 158, 227; Beck v. Thompson, 31 W. Va. 459, 7 S. E. 447. The same rule is applicable to criminal cases. See Sto, te v. McDonald, 9 W. Va. 456, 464; State v. Hobbs, 37 W. Va. 812, 826, 17 S. E. 380; State v. Porter, 98 W. Va. 390, 398, 127 S. E. 386; State v. Preece, 116 W. Va. 176, 179 S. E. 524; State v. Jones, 128 W. Va. 496, 37 S. E. 2d 103.
All male persons over the age of twenty-one and under the age of sixty-live, who are citizens of the State, are liable to service as jurors. Code, 52-1-1. The statutory qualification of jurors, as contrasted with the disqualifications to be hereinafter discussed, are such persons as the jury commissioners "* * * shall think well qualified to serve as jurors, being persons of sound judgment, of good moral character, and free from legal exception * * *." Chapter 80, Acts of the Legislature, Regular Session, 1945.
Persons engaged in certain professions and callings, enumerated in Chapter 79, Acts of the Legislature, Regular Session, 1945, are exempt, but not disqualified, from service as...
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