Watts v. Ohio Valley Electric Ry. Co.

• Decision Date: 04 April 1916
• Citation: 78 W.Va. 144
• Court: West Virginia Supreme Court
• Parties: Watts v. Ohio Valley Electric Ry. Co.

78 W.Va. 144

Watts

v.Ohio Valley Electric Ry. Co.

Supreme Court of Appeals of West Virginia.

Submitted March 28, 1916.

Decided April 4, 1916.

1. Master and Servant Injury to Servant Declaration Sufficiency.

In an action against an employer, subject to the Workmen 'a Compensation Act, for an injury received by one of his servants, the declaration is good, if its averments show the injury was the direct result of negligence on the part of some employe or officer, other than plaintiff; or resulted from the negligence of such other combined with his own. (p. 145).

2. Same Injury to Servant Workmen's Compensation Act Abolition of Defenses Negligence.

Negligence is the basis of such action; and, if plaintiff's injury is due wholly to his own negligence, he can not recover. But section 26 of the Act, makes the employer liable, not only for his own negligence, but also for the negligence of any of his officers, agents or other employes, and denies to him the common law defenses of contributory negligence, assumption of risk and negligence of a fellow servant. (p. 148).

3. Same Workmen's Compensation Act Validity Abolition of Defenses.

The Workmen's Compensation Act does not violate any of the employer's constitutional rights, by denying to him the aforesaid defenses. (p. 147).

4. Commerce Interstate Commerce Federal Employers' Liability Act.

An electric railway company which operates an urban car line, and also other lines connecting therewith and extending into another State, is both an intrastate and an interstate carrier. But the Federal Employers' Liability Act does not apply in the case of injury to a servant of such company, who is operating a street car, confined to the urban lines and not, at the time of injury, carrying interstate passengers or traffic. To make the federal act applicable, the injured servant must be engaged in interstate commerce at the time of injury. (p. 146).

5. New Trial Verdict Motion to Set Aside Compulsory Bemittittur.

In an action for personal injury, where the jury has returned a verdict for plaintiff, and defendant has moved to set it aside on the ground that the damages assessed are excessive, it is reversible error to compel plaintiff to remit a portion of the damages on pain of having the verdict set aside, and to enter judgment for the balance. (p. 149).

Error to Circuit Court, Cabell County.

Action under the Workmen's Compensation Act by Willard Watts against the Ohio Valley Electric Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed, and new trial awarded.

Vinson & Thompson, for plaintiff in error.

Marcum & Shepherd and J. W. Perry, for defendant in error.

Williams, President:

Plaintiff, a motorman on one of defendant's cars in the city of Huntington, was injured on the night of June 11, 1914, by colliding with another car being operated by another motorman on the same line. In an action for damages he recovered a judgment against defendant for $3,000, and it seeks reversal on writ of error.

The overruling of defendant's demurrer to the declaration is the first assignment of error. Counsel insist that the declaration does not allege a cause of action against defendant; that it fails to aver that it has not provided reasonably safe and suitable machinery and appliances with which to carry on its business, or that it had not selected careful, skilled and experienced servants, or had not adopted proper and necessary rules for the conduct of its operations. Defendant owns and

operates, by means of electric power, car lines in the city of Huntington, and an interurban line between said city and the city of Ashland, Kentucky; and is, consequently, one of the class of employers subject to the Workmen's Compensation Act. Ch. 15P, Code 1913. Defendant did not elect to pay into the compensation fund, provided by that act, as it might have done. And section 26 of the Act provides that an employer shall be liable to his employes for damages suffered by reason of personal injuries sustained in the course of employment, caused by the "wrongful act, neglect or default of the employer, or any of the employer's officers, agents or employes." It was, therefore, not necessary, as it was at the common Jaw, to aver the master's negligence as the proximate cause of injury. Sec. 26 of the Act denies to an employer, who has not contributed to the compensation fund, the common law defenses of assumption of risk, contributory negligence, and negligence of a fellow servant; also the defense that the negligence in question was that of some one whose duties are prescribed by statute. The declaration properly avers negligence, and the nature of the negligent act averred discloses that it was committed by some agent, officer or servant of defendant, for which the statute makes defendant liable. It avers that plaintiff was injured by defendant's negligently running one of its cars, causing it to collide with his. Defendant being a corporation, we know it operates cars only by its servants; we also know such servants are the fellow servants of plaintiff; and, therefore, we see that the declaration avers defendant's liability.

Defendant moved to dismiss the action, on the ground that it is an interstate carrier, and hence the action was improperly brought under the State law, and should have been brought under the Federal Employers' Liability Act. The motion was overruled, and this is defendant's second assignment. Defendant was both an interstate and an intrastate carrier; it operated some of its cars wholly within the city of Huntington, and operated others between Huntington and Ashland, Kentucky. A part of its tracks in Huntington was used by both classes of cars. The cars that caused plaintiff's injury were operated on the Sixth and Eighth avenues line, wholly within the city, between 9th and 26th streets, East. By the rules of defendant company, a passenger on either of those cars, going westward, who desired to go further than the end of that line, was given a transfer which entitled him, without additional fare, to ride on a Huntington and Ashland car, as far west as Camden Park, West Virginia; and, by the payment of additional fares, after reaching that point, he could continue on the same car to Ashland. Defendant is an interstate, as well as an intrastate carrier; and, in certain cases, is liable under the federal act for injury to an employe. But that act does not apply, unless the injured servant and the carrier are both, at the time of the injury, engaged in interstate traffic. See Federal Employers' Liability Act; Pederson v. Delaware &c. R. Co., 229 U. S. 146; Easter v. N. & W. Ry. Co., 76 W. Va. 383, 86 S. E. 37; and Richey on Federal Employers Liability, 67, and numerous cases cited in note. The car on which plaintiff was motorman was operated wholly within the city limits of Huntington, and, at the time of the collision, was carrying no passengers. Hence it was not, in any sense, then engaged in interstate commerce.

The giving of plaintiff's instruction and the refusal to give one asked for by defendant are assigned as error. Plaintiff's instruction submitted to the jury all the controverted, material facts, and correctly informed them of the law as contained in sec. 26 of the Workmen's Compensation Act, and was, therefore, proper. Defendant's instruction was peremptory, telling the jury to find a verdict in its favor, and was properly refused.

The constitutionality of the act is assailed on the ground that it takes from defendant its common laws defenses. Ives v. South Buffalo Ry. Co., 201 N. Y. 271, is the only case cited to support this proposition. The New York act, held in that case to be unconstitutional, was different,...