Williamson v. Hines, Agent
| Decision Date | 18 October 1921 |
| Docket Number | 4230. |
| Citation | 109 S.E. 237,89 W.Va. 268 |
| Parties | WILLIAMSON v. HINES, AGENT. |
| Court | West Virginia Supreme Court |
Submitted October 5, 1921.
Syllabus by the Court.
Amendment of a declaration by the substitution of Walker D. Hines Agent, as defendant, in lieu of Walker D. Hines, Director General of Railroads, does not warrant postponement of a trial of the action then begun or about to begin, unless defendant shows good cause for the delay.
An instruction given in an action for damages for an injury sustained in a railroad collision, which limited the recovery to the injury so inflicted, independent of injuries suffered by plaintiff in other like or similar collisions specified, is not erroneous if he had become more responsive to injury because of such former collisions, which rendered him more susceptible to injury, of which susceptibility defendant was not aware at the time of the accident.
An instruction which directs a verdict for defendant, provided the jury should believe plaintiff was, when he became a passenger, "in a highly nervous condition" because of former wrecks, and was not, therefore, a "fair average individual," and his condition was unknown to the carrier, and that the injury occurred without wanton negligence and but for such condition it would have been slight, if any, had he "been well" when the collision occurred, is erroneous, because it makes the knowledge of the carrier a condition precedent to the right to compensation for the injury inflicted.
Error to Circuit Court, Cabell County.
Action by Carl E. Williamson against Walker D. Hines, Agent, etc for personal injuries. Judgment for plaintiff, and the defendant brings error. Affirmed.
Fitzpatrick Campbell, Brown & Davis, of Huntington, for plaintiff in error.
A. A. Lilly, of Charleston, and J. S. Lilly, of Huntington, for defendant in error.
The errors assigned by defendant below and plaintiff in error for the reversal of a $5,000 judgment for plaintiff in an action for damages due to an injury inflicted upon him, as the declaration charges, in a collision of the train on which he was a passenger and an engine negligently permitted to stand on the track over which the train had the right to unobstructed passage on its eastward trip from Huntington to Charleston, and elsewhere over defendant's line of railroad, will appear as the discussion proceeds. The collision occurred December 18, 1918, and that it did occur in the manner indicated is not controverted. The only vital question to be determined upon this review has arisen on the motion to set aside the verdict of the jury and grant a new trial, which motions the trial court overruled, and entered judgment for the sum returned by the jury. All other assignments center upon the rulings upon the motions mentioned.
The only excuse offered for obstructing the track is that, as the east-bound train was nearly an hour late in leaving the station at Huntington, the agent of the company who drove the engine on the track concluded, without inquiry, that the train had run on its regular scheduled time. That supposition is not an extenuation of the negligence that was responsible for the collision, and defendant does not contend that it is. The declaration, the sufficiency of which the defendant challenged by demurrer, sets forth with certainty and particularity every fact and circumstance necessary to constitute good pleading, and we see no reason for any appropriate action thereon other than that taken by the court in overruling the demurrer, and defendant assigns no such reason.
The substitution of the name Walker D. Hines, Agent, for Walker D. Hines, Director General of Railroads, as the defendant named in the summons and declaration, worked no prejudice against him, and he does not show in what respect, if any, the substitution prejudiced his right of defense during the progress of the trial; the change in name having been made after the jury had been impaneled and had heard part of the evidence. Defendant did object to the motion to amend the pleading by the substitution of a different description of the person sued, and excepted to the action of the court upon the motion, but did not request a postponement, or show or attempt to show cause for postponing the trial, or, in so far as appears from the record, assign as erroneous the permission to amend and the amendment of the declaration, until after the allowance of the writ bringing the case here for review. There is no error in the procedure. Harness v. B. & O. Railroad Co., 86 W.Va. 284, 297, 103 S.E. 866.
A discussion of the court's refusal to direct a verdict for defendant seems unnecessary, as clearly plaintiff was injured by the collision and was entitled to some compensation for the loss sustained by him, whether the injury so inflicted was temporary or permanent. He did receive some injury chargeable to defendant's negligence, a fact as to which there is no dispute. If he is to be credited, he spent $1,000 to effect a cure for the impairment of his physical health due to the accident.
Our examination of the instructions requested by plaintiff, and given by the court, discloses no valid cause for unfavorable comment. Plaintiff's instructions A and B are not criticized by defendant, and we find them unobjectionable. His instruction C directed the jury's attention to like injuries inflicted upon plaintiff in a railroad accident in 1913, and an automobile accident in 1916, and told the jury that, if by reason thereof he was more susceptible to injury nervousness, and pain at the date of the Chesapeake & Ohio wreck on December 18, 1918, and that on that date the defendant negligently injured the said Williamson, and he was damaged thereby, the jury should find for the plaintiff an amount sufficient to compensate him to the full extent of the injury inflicted by defendant, etc. The objection to this language goes to the failure of the plaintiff to inform defendant of his former injuries, presumably for the purpose of exacting from defendant...
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