Opinion
02-09-1818
Shaver v. White and Dougherty.[*]
Judgment reversed.
OPINION
The circumstances of this case, and points in controversy between the parties, together with the Court's opinion thereupon, were stated as follows, by Judge Roane.
This was an action of Trespass, brought by the appellees, White and Dougherty, against the appellant, in the Superior Court of law for the County of Washington. --It charges that he (the appellant) combined with--Fagan, at Sullivan, to wit at the County of Washington aforesaid, and within the jurisdiction of the Court, with force and arms, took three hundred head of cattle out of their possession, and other wrongs then and there did, against the peace of the Commonwealth. To this Declaration four several pleas were put in, and were demurred to by the plaintiffs, which demurrer was held good by the Court; whereupon, the defendant pleaded not guilty, on which, issue was taken; and a verdict was found for the plaintiffs, subject to the opinion of the Court upon the demurrer to evidence. The Court gave judgment for the plaintiff upon the demurrer, from which the defendant appealed to this Court.
As all the objections taken in the case, equally occur upon the Demurrer to Evidence, as upon the pleas, it will not be necessary for us to go into the latter; farther, at least, than is inferable from the opinion given upon the former. It is probable, however, that judgment should have been rendered for the appellant, at an earlier stage, upon the two last pleas; on the ground that they set forth facts which shew, that Case, and not Trespass, was the proper action.
The Case, as briefly collected from the demurrer to evidence, is, that the appellant had obtained an attachment, in Tennessee, for a debt claimed as due from White, and caused it to be levied upon the property of both the plaintiffs; which attachment, it is alleged, was obtained on false pretences, and was iniquitous. The Judgment rendered on the Attachment was also perpetually enjoined by the Court of Errors in that State. In addition to this objection to the proceeding, it is further objected that the action did not lie in Virginia, for an act committed in Tennessee; and that trespass was not the proper action.
We hold it to be a clear principle, that actions may be brought here upon contracts entered into, or personal injuries committed, any where. In general, it is not necessary to state in the declaration, where the contract arose, or the injury was committed. But this is sometimes necessary, and then (for the sake of obviating the objection of a variance, or the like,) the plaintiff is permitted, by a fiction, to state, under a videlicet, that the place is within the jurisdiction of the Court in which the suit is brought. It is also held that this fiction, being in furtherance of justice, can not be traversed. In cases in which the plaintiff does not use this fiction, the defendant shall not, in general, be permitted to aver that the cause of action arose in another Country; for that averment is in conflict with the principle before stated, that contracts and personal injuries are not in their nature local. A defendant shall not be permitted to aver this fact, unless he finds it necessary to aver, also, that, by the laws of the Country in which the act was committed, it was justifiable. In that case the locality of the act forms an essential part of his defence; it cuts up the right of action of the plaintiff; and the pleading it is even beneficial to the plaintiff, as it affords him an opportunity, before the trial, of ascertaining whether the laws of the Country in question are such as are averred by the plea.
In the case before us, it was not improper for the defendant to plead that the trespass was committed in the State of Tennessee, as he also pleaded that he was acting under the authority of the laws of that State, in the instance in question. These facts, however, do not go to the jurisdiction of the Court; but only to the justification of the defendant; the principle being, as aforesaid, that if a party is justified, as to a transaction, in the Country or place in which it was committed, he is justifiable every where.
So, these facts may not only amount to a complete justification of the defendant; but, if they do not, they may shew he is not responsible in the particular form of action in question. They shew, in the case before us, that the action of trespass vi et armis does not lie. The act in question was unaccompanied with force, and the defendant was only seeking redress of an injury by the regular forms of law. If, indeed, he has gone out of his proper province, and has endeavoured to make those forms subservient to the malignity of his views; if he has instituted the action or proceeding with malice and without probable cause; then, indeed, he is responsible for his conduct; but not in this form of action. The action adapted to such a state of things, is a special action on the case, for a malicious prosecution. The case of Young v. Gregory, in this Court, is conclusive to shew both that that is the proper kind of action, and that the declaration should aver the existence of malice, and the want of a probable cause of action.
The Evidence disclosed in the Demurrer, therefore, does not authorize the appellees to recover in this action, which is an action of Trespass. Whether it would justify a judgment in an action for a malicious prosecution, we need not determine.
This view of the case in conclusive as to the appellee White. It is also conclusive as to Dougherty. By connecting himself with White in this action, and suing the appellant instead of the Sheriff, he must submit to the decision in it. He can not bring an action of trespass against the appellant, who has only pursued a legal remedy; and it is not necessary for us to say whether he could bring that action against the Sheriff, who is no party to this action. As at present advised, however, we think the officer was justified in seizing all the partnership effects. It is laid down in the case of Heydon v. Heydon, 1 Salk. 392, that, on a judgment against one co-partner, the Sheriff must seize all the partnership effects; because the moieties are undivided; for if he seize but a moiety, and sell that, the other partner will have a right to a moiety of that moiety; but he must seize the whole, and sell a moiety thereof undivided, and the Vendee will be tenant in common with the other partner.
On these grounds, we are of opinion, that the judgment should be reversed, and entered for the appellant.
NEGLIGENCE.
I. What Constitutes Negligence.
A. Definition.
1. Subject Illustrated.
a. Duty to Trespassers.
(1) Infants.
(2) Adults.
b. Duty to Licensee.
c. Negligence of Third Persons.
d. Concurring Negligence.
e. Privity of Contract.
2. Ordinary Care.
a. Definition.
(1) Rule.
(2) Degree of Care Required of Railroad Companies.
b. Duty Illustrated.
B. Negligence Per Se.
C. When Negligence Presumed.
D. Contracting against Negligence.
II. Proximate Cause.
A. Definition.
1. Effects on Rights of Parties, Generally.
a. Must Be Proximate Cause to Create Liability.
b. Must Be Proximate Cause to Defeat Recovery.
c. Effect of Remote Negligence.
d. Where Defendant Knew of Plaintiff's Negligence.
e. Intervening Act of Third Persons.
f. When Negligence Is Concurrent.
III. Contributory Negligence.
A. Definition.
1. Rule in Actions for Damages.
a. Rule Restated, with Exceptions.
(1) Cases Illustrating the Rule.
(a) Acting on Sudden Emergency.
(b) Imputed Negligence.
(aa) Of Parents.
(bb) Of Driver of Vehicle.
(c) Negligence of Children.
(d) Plaintiff Must Trace Fault to Defendant.
(e) What Defendant Must Show.
(f) Degree of Care Required.
(g) When Plaintiff May Recover, Notwithstanding His Negligence.
(h) Servant Leaving Safe Place without Cause.
(i) Quantum of Negligence Not Material.
(j) All Facts and Circumstances to Be Considered.
(k) When Negligent Act Not Contributory Negligence.
(l) Negligence Not Presumed.
(m) Question of Estoppel.
IV. The Pleading.
A. General Rule.
1. What Declaration Must Allege.
2. What Declaration Need Not Allege.
3. Sufficient Allegations.
4. Insufficient Allegations.
V. Evidence.
A. Burden of Proof.
B. Admissibility of Evidence.
C. Conclusiveness.
D. Witnesses.
VI. The Trial.
A. Province of Court and Jury.
1. Rules Governing.
B. Instructions.
1. Proper.
2. Improper.
3. Inconsistent.
4. Modification of Instructions.
5. When Refused.
6. When Court's Duty to Give.
7. Effect, if Proper Instructions Disregarded.
Cross References to Monographic Notes. Attorney and Client, appended to Johnson v. Gibbons, 27 Gratt. 632. Common Carriers, appended to Farish v. Reigle, 11 Gratt. 697. Evidence, appended to Lee v. TapscottWash. (VA) 276.
Expert and Opinion Evidence.Fellow Servants, appended to Edmunds v. Venable, 1 Patton & H. 121. Instructions, appended to Womack v. Circle, 29 Gratt. 192. Master and Servant, appended to Hewes v. Doddridge, 1 Rob. 143. Municipal Corporations, appended to Danville v. Pace, 25 Gratt. 1.
I. WHAT CONSTITUTES NEGLIGENCE.
A. DEFINITION.
Negligence is the doing of something, which, under the circumstances, a reasonable person would not do, or the omission to do something in the 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 damage to another. Washington v. R. Co., 17 W.Va. 190. See Dicken v. Liverpool, etc., Coal Co., 41 W.Va. 511, 23 S.E. 582.
1. Subject Illustrated.
a. Duty to Trespassers.
(1) Infants.--A railroad company is liable for the resulting injuries to an infant trespasser who is compelled by the servants of the company to jump from one of its trains while running at a high rate of speed. The law does not permit wanton injury to be inflicted even on a trespasser. Washington, etc., R. Co. v. Quayle, 95 Va. 741, 30 S.E. 391.
But where a city permits excavations to be unguarded near a highway, it is not guilty of actionable negligence or injury to a child, if such child, to reach the excavation, the cause of injury, became a trespasser on another's land. Clark v. Richmond, 83 Va. 355, 5 S.E. 369. See Ritz v. Wheeling, 45 W.Va. 262, 31 S.E. 993; Uthermohlen v. Bogg's Run Min., etc., Co., 50 W.Va. 457, 40 S.E. 410; Washington, etc., R. Co. v. Quayle, 95 Va. 741, 30 S.E. 391.
Nor is a landowner under any duty to a mere trespasser to keep his premises safe, and the fact that the trespasser is a child does not raise a duty where none otherwise exists. Such a trespasser, injured on such premises, cannot recover of the landowner by reason of the unsafe condition of the premises, unless this negligence be so gross as to amount to wanton injury. Ritz v. Wheeling, 45 W.Va. 262, 31 S.E. 993. See Woolwine v. Chesapeake, etc., R. Co., 36 W.Va. 329, 15 S.E. 81; Uthermohlen v. Bogg's Run Min., etc., Co., 50 W.Va. 457, 40 S.E. 410.
(2) Adults.--A railroad company is bound to keep a reasonable lookout for trespassers on its track, and to use such care as the circumstances require to prevent injury to them. If a trespasser be an adult, apparently possessed of his faculties, the company has a right to believe that he will use his faculties and leave his dangerous position, and if he fails to do so and is injured the fault is his own, and in the absence of willful negligence on its part he has no remedy. Tyler v. Sites', 88 Va. 470, 13 S.E. 978.
b. Duty to Licensee.
An owner is under no duty to keep his premises in safe and suitable condition for licensees, and is only liable for willful or wanton injury that may be done the licensee by the gross negligence of himself, his agents or employees. Woolwine v. Chesapeake, etc., R. Co., 36 W.Va. 329, 15 S.E. 81. See Ritz v. Wheeling, 45 W.Va. 262, 31 S.E. 993.
c. Negligence of Third Persons.
There must be a duty resting by law on one person, to charge him with damage from the negligence of another. No action for negligence will lie without a legal duty broken. Uthermohlen v. Bogg's Run Min., etc., Co., 50 W.Va. 457, 40 S.E. 410.
d. Concurring Negligence.
Concurring negligence of a master and a fellow servant, in order to render the master liable, must be simultaneous, operative and effectual at the time of the accident, and must not stand in the relation of remote and proximate cause to the event, for if they so stand, and the servant can, by the exercise of ordinary care, avoid the effect of the master's negligence, there is no liability on the master. Norfolk & Western R. Co, v. Cromer, 99 Va. 763, 40 S.E. 54.
e. Privity of Contract.
Where a merchant sells a poisonous drug to one person, for a medicine which is harmless, by mistake, and it is taken for medicine, without negligence, by a third person, the seller is liable to such third person, for damages resulting to him therefrom, notwithstanding there is no privity of contract between the merchant and such third person. Peters v. Johnson, 50 W.Va. 644, 41 S.E. 190.
2. Ordinary Care.
a. Definition.
The terms " negligence" and " ordinary care" are correlative terms. Ordinary care depends on the circumstances of the particular case, and is such care as a person of ordinary prudence, under the circumstances, would have exercised. Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455. See Newport News, etc., R. Co. v. Bradford, 99 Va. 117, 37 S.E. 807; Fowler v. Baltimore, etc., R. Co., 18 W.Va. 579.
(1) Rule.--The measure of care imposed upon the master for the safety of his servant in the use of dynamite is that ordinary care which reasonable and prudent men would and do exercise under like circumstances. Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S.E. 869. See Schwartz v. Shull, 45 W.Va. 405, 31 S.E. 914.
(2) Degree of Care Required of Railroad Companies.--The law, in tenderness to human life and limbs, holds railroad companies liable for the slightest negligence, and compels them to repel, by satisfactory proof, every imputation of such negligence; and, therefore when the death of a passenger on such railroad is caused by the slightest neglect, against which human prudence and foresight could have guarded, the company is liable in damages. Baltimore, etc., R. Co. v. Noell, 32 Gratt. 394. See Baltimore, etc., R. Co. v. Wightman, 29 Gratt. 431; Virginia Cent. R. Co. v. Sanger, 15 Gratt. 230.
b. Duty Illustrated.
It is well settled that if the employer do not use ordinary care in supplying and maintaining adequate and safe instrumentalities for the performance of the work required, it is such negligence as will make the employer liable for any consequent injury to the servant. Richmond, etc., R. Co. v. George, 88 Va. 223, 13 S.E. 429.
And a street railway company which advertises a balloon ascension at a park owned by it, thereby inviting the public to visit its premises and witness the ascension, is liable in damages for an injury to a visitor resulting from negligently permitting the falling of a pole used in preparing for said ascension. Richmond, etc., R. Co. v. Moore, 94 Va. 493, 27 S.E. 70.
But where one uses care and skill in the operation of a lawful business on his premises, so that it is no nuisance, in the absence of proof of fault or negligence in him, he is not liable for damages to his neighbor, caused by the explosion of a boiler used in such business. Veith v. Hope, etc., Co., 51 W.Va. 96, 41 S.E. 187.
To one going upon another's premises, not as a trespasser or mere licensee, but by invitation in a legal sense, as, for instance, an independent contractor going upon such premises to do work under contract with the owner, the owner owes the duty of reasonable care to have and keep his premises in safe condition for such person's work, unless defects be known to such person. Sesler v. Rolfe, etc., Co., 51 W.Va. 318, 41 S.E. 216.
B. NEGLIGENCE PER SE.
It is not negligence per se for one to use a street known to be dangerous, if reasonably prudent men differ as to the propriety of encountering the danger. Charlottesville v. Stratton (Va.), 45 S.E. 737. See Newport News, etc., R. & E. Co. v. Bradford, 100 Va. 231, 40 S.E. 900.
C. WHEN NEGLIGENCE PRESUMED.
A presumption of negligence from the occurrence of an accident arises where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases; or, where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, or for the management or construction of which he is responsible. Richmond R., etc., Co. v. Hudgins, 100 Va. 409, 41 S.E. 736. See Southern R. Co. v. Dawson, 98 Va. 577, 36 S.E. 996; Baltimore, etc., R. Co. v. Noell, 32 Gratt. 394; Snyder v. Wheeling Elec. Co., 43 W.Va. 661, 28 S.E. 733; Baltimore, etc., R. Co. v. Wightman, 29 Gratt. 431; Carrico v. West Va., etc., R. Co., 39 Va. 104, 19 S.E. 571. Compare Veith v. Hope, etc., Co., 51 W.Va. 96, 41 S.E. 187.
D. CONTRACTING AGAINST NEGLIGENCE.
A railroad company cannot, by express contract, relieve itself from its liability for injury to or loss of freight resulting in any degree from want of care or faithfulness of themselves or agents; but, notwithstanding the contract, such company is responsible if the damage was caused by any negligence of the company or its agents. Virginia & Tenn. R. Co. v. Sayers, 26 Gratt. 328. See Norfolk, etc., R. Co. v. Harman, 91 Va. 601, 22 S.E. 490; Johnson v. Richmond, etc., R. Co., 86 Va. 975, 11 S.E. 829; C. & O. R. Co. v. American Ex. Bank, 92 Va. 495, 23 S.E. 935; Maslin v. Baltimore, etc., R. Co., 14 W.Va. 180. But compare Zouch v. Chesapeake, etc., R. Co., 36 W.Va. 524, 15 S.E. 185; Richmond, etc., R. Co. v. Payne, 86 Va. 481, 10 S.E. 749.
II. PROXIMATE CAUSE.
A. DEFINITION.
The proximate cause of an injury is the last negligent act contributing thereto, and without which such injury would not have resulted. Schwartz v. Shull, 45 W.Va. 405, 31 S.E. 914.
But " proximate cause," as a legal term, does not necessarily imply closeness or nearness in point of time or physical sequence of events, but, rather, closeness or nearness in causal connection. Watts v. Southern Bell Tel. Co., 100 Va. 45, 40 S.E. 107.
1. Effects on Rights of Parties, Generally.
a. Must Be Proximate Cause to Create Liability.
Negligence, no matter of what it consists, cannot create a cause of action, unless it is the proximate cause of the injury complained of. The two must concur. Chesapeake, etc., R. Co. v. Jennings, 98 Va. 70, 34 S.E. 986. See Sexton v. Turner, 89 Va. 341, 15 S.E. 862.
b. Must Be Proximate Cause to Defeat Recovery.
The negligence of a plaintiff which will defeat his recovery must be a proximate cause of injury. Fowler v. B. & O. R. Co., 18 W.Va. 579. See Tompkins v. Kanawha Board, 21 W.Va. 224; Blaine v. C. & O. R. Co., 9 W.Va. 252; Sheff v. Huntington, 16 W.Va. 307; Washington v. B. & O. R. Co., 17 W.Va. 190.
And so it is held that any negligence of the servant that is the proximate cause of injury will defeat his action for such injury. Darracott v. C. & O. R. Co., 83 Va. 288S.E. 511; Sexton v. Turner, 89 Va. 341, 15 S.E. 862.
And if the evidence, whether introduced by the plaintiff or defendant, shows that the negligence of the plaintiff was the proximate cause of the injury, there can be no recovery. Sheff v. Huntington, 16 W.Va. 307; Fowler v. B. & O. R. Co., 18 W.Va. 579; Childrey v. Huntington, 34 W.Va. 457, 12 S.E. 536; Gerity v. Haley, 29 W.Va. 98, 11 S.E. 901; Butcher v. West Va. & P. R. Co., 37 W.Va. 180, 16 S.E. 457; Overby v. C. & O. R. Co., 37 W.Va. 524, 16 S.E. 813.
If the evidence discloses that the defect was the remote and note the proximate cause of the injury, plaintiff is not entitled to recover. Childrey v. Huntington, 34 W.Va. 457, 12 S.E. 536. See Butcher v. West Va., etc., R. Co., 37 W.Va. 180, 16 S.E. 457.
c. Effect of Remote Negligence.
But the remote negligence of a plaintiff will not prevent his recovery for an injury to his property caused immediately by the negligence of the defendant. The negligence of a plaintiff that defeats recovery must be a proximate cause of the injury. Blaine v. C. & O. R. Co., 9 W.Va. 252.
d. Where Defendant Knew of Plaintiff's Negligence.
And though negligence, to defeat a recovery for personal injuries, must have been the proximate cause thereof, yet, where defendant knew, or with ordinary care should have known, of plaintiff's negligence, and could have avoided the accident, but failed to do so, plaintiff can recover. Richmond Traction Co. v. Martin (Va.), 45 S.E. 886.
e. Intervening Act of Third Persons.
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 results, a third person does some act, which is the immediate cause 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. Washington v. Baltimore, etc., R. Co., 17 W.Va. 190. See Fawcett v. R. Co., 24 W.Va. 755; Richmond, etc., R. Co. v. Rudd, 88 Va. 648, 14 S.E. 361.
f. Where Negligence Is Concurrent.
Where the proximate cause of the death of the decedent was his own negligence, concurring with that of defendant, there can be no recovery. But, although the deceased may have been guilty of negligence, which may, in fact, have contributed to the injury, yet, if the defendant could, in the result, by the exercise of ordinary care and diligence, have prevented the injury, the action may be maintained. Johnson v. C. & O. R. Co., 91 Va. 171, 21 S.E. 238. See Humphreys' v. Valley R. Co., 100 Va. 749, 42 S.E. 882; Va. Mid. R. Co. v. Barksdale, 82 Va. 330.
But the negligence of the defendant and that of plaintiff may be so substantially concurrent that it would be impossible to separate the conduct of the plaintiff from the injury itself, so as to permit a recovery therefor. Richmond Traction Co. v. Martin (Va.), 45 S.E. 886.
III. CONTRIBUTORY NEGLIGENCE.
A. DEFINITION.
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. Washington v. R. Co., 17 W.Va. 190; Riley v. R. Co., 27 W.Va. 145; Woodell v. West Va. Imp. Co., 38 W.Va. 23, 17 S.E. 386.
1. Rule in Actions for Damages.
It is a general if not a universal rule, that, if the plaintiff has been guilty of contributory negligence he cannot recover. Washington v. R. Co., 17 W.Va. 190. See Robinson v. W. Va., etc., R. Co., 40 W.Va. 583, 21 S.E. 727; Southern R. Co. v. Bruce, 97 Va. 92, 33 S.E. 548; Norfolk, etc., R. Co. v. Cottrell, 83 Va. 512, 3 S.E. 123; Southern R. Co. v. Mauzy, 98 Va. 692, 37 S.E. 285; Woodell v. West Va. Imp. Co., 38 W.Va. 23, 17 S.E. 386.
a. Rule Restated, with Exceptions.
One who is injured by the mere negligence of another cannot recover any compensation for his injury if he, by his own negligence or willful wrong, contributed to produce the injury of which he complains; so that, but for his concurring and co-operating fault, the injury would not have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party's negligence, to use a proper degree of care to avoid the consequence of such negligence. Farley v. R. & D. R. Co., 81 Va. 783. See R. & D. R. Co. v. Yeamans, 86 Va. 860, 12 S.E. 946; R. & D. R. Co. v. Anderson, 31 Gratt. 812; Dun v. Seaboard, etc., R. Co., 78 Va. 645; Rudd v. Richmond, etc., R. Co., 80 Va. 546; Overby v. C. & O. R. Co., 37 W.Va. 524, 16 S.E. 813; Carrico v. West Va. Cent., etc., R. Co., 35 W.Va. 389, 14 S.E. 12; Norfolk, etc., R. Co. v. Ferguson, 79 Va. 241.
(I) Cases Illustrating the Rule.
(a) Acting on Sudden Emergency.--One may not, by his own negligence or want of proper care. place another in a perilous situation, and, when sued for injuries resulting therefrom, put the burden on the plaintiff of showing that he acted with reasonable care. Persons in great peril are not required to exercise the presence of mind required of prudent men under ordinary circumstances. Richmond R., etc., Co. v. Hudgins, 100 Va. 409, 41 S.E. 736. See South-West Imp. Co. v. Smith, 85 Va. 306, 7 S.E. 365; Haney v. Pittsburg, C., C. & St. L. R. Co., 38 W.Va. 570, 18 S.E. 748; Washington, etc., R. Co. v. Quayle, 95 Va. 741, 30 S.E. 391.
And if one is placed by the negligence of another in such a position that he is compelled to choose instantly, in the face of grave and apparent peril, between two hazards, and he makes such a choice as a person of ordinary prudence placed in such a position might make, the fact that if he had chosen the other hazard he would have escaped injury is of no importance in determining whether he was guilty of contributory negligence or not. Haney v. Pittsburg, C., C. & St. L. R. Co., 38 W.Va. 570, 18 S.E. 748.
But the sudden peril which will excuse what would otherwise be contributory negligence on the part of the plaintiff must have been caused by the action of the defendant and not a third person. Trowbridge v. Danville St. Car Co., 1 Va. Dec. 823; Boggess v. C. & . O. R. Co., 37 W.Va. 297, 16 S.E. 525.
In Boggess v. C. & O. R. Co., 37 W.Va. 297, 16 S.E. 525, it was held, where a conductor threatened to eject the plaintiff from a moving train by force, and had force at his command to execute the threat (and the plaintiff jumped from the train to avoid ejection by force), to be sufficient compulsion or show of force to excuse the plaintiff from the charge of contributory negligence in so jumping. Washington, etc., R. Co. v. Quayle, 95 Va. 741, 30 S.E. 391.
(b) Imputed Negligence.
(aa) Of Parents.--Where, by negligence, a child of tender age and non sui juris is injured, the contributory negligence of its parents is not imputable to the child, whether the action for damages is brought by the child itself or its personal representative. N. & W. R. Co. v. Groseclose, 88 Va. 267, 13 S.E. 454; Roanoke v. Shull, 97 Va. 419, 34 S.E. 34; Dicken v. Liverpool Salt, etc., Co., 41 W.Va. 511, 23 S.E. 582; Trumbo v. City Street Car Co., 89 Va. 780, 17 S.E. 124; Gunn v. Ohio River R. Co., 36 W.Va. 165, 14 S.E. 465.
(bb) Of Driver of Vehicle.--Nor can the negligence of a driver of a vehicle be imputed to a passenger therein, where the passenger was in such a vehicle on the invitation of the driver. Unless the passenger was himself guilty of contributory negligence, he will not be barred of recovery by the negligence of the driver of the vehicle. Atlantic, etc., R. Co. v. Ironmonger, 95 Va. 625, 29 S.E. 319. See Atlantic, etc., R. Co. v. Reiger, 95 Va. 418, 28 S.E. 590; N. Y., P. & N. R. Co. v. Cooper, 85 Va. 939, 9 S.E. 321.
(c) Negligence of Children.--The law presumes that an infant between seven and fourteen years old cannot be guilty of contributory negligence, and, in an action by such infant, the burden is on the defendant to overcome this presumption by proof of intelligence and capacity. Roanoke v. Shull, 97 Va. 419, 34 S.E. 34; Gunn v. Ohio River R. Co., 36 W.Va. 165, 14 S.E. 465; N. & W. R. Co. v. Groseclose, 88 Va. 267, 13 S.E. 454; Trumbo v. City Street Car Co., 89 Va. 780, 17 S.E. 124.
And a child two years and ten months old cannot be capable of contributory negligence, so as to relieve a railroad company from liability for its own negligence. Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455. See Dicken v. Liverpool Salt, etc., Co., 41 W.Va. 511, 23 S.E. 582.
(d) Plaintiff Must Trace Fault to Defendant.--Where negligence is the ground of an action, it rests upon the plaintiff to trace the fault for his injury to the defendant, and for this purpose he must show the circumstances under which the injury occurred; and if, from these circumstances so proven by the plaintiff, it appears that the fault was mutual, or, in other words, that contributory negligence is fairly imputable to him, he has, by proving the circumstances, disproved his right to recover, and on the plaintiff's evidence alone the jury should find for the defendant. Gerity v. Haley, 29 W.Va. 98, 11 S.E. 901. See Butcher v. W.Va. & P. R. Co., 37 W.Va. 180, 16 S.E. 457; Overby v. C. & O. R. Co., 37 W.Va. 524, 16 S.E. 813.
(e) What Defendant Must Show.--It is not necessary to the defense of contributory negligence to show that but for it the accident would not have occurred: it is enough to show that the negligence of the plaintiff contributed to the injury. The question to be determined is not whether the plaintiff's negligence caused, but whether it contributed to, the injury of which he complains. Norfolk, etc., R. Co. v. Cromer, 99 Va. 763, 40 S.E. 54.
(f) Degree of Care Required.--To escape the responsibility of contributory negligence, the plaintiff is not required to exercise more care than is usual under similar circumstances among careful persons of the class to which he belongs. Dimmey v. Wheeling, etc., R. Co., 27 W.Va. 32 at 53; Fowler v. Baltimore, etc., R. Co., 18 W.Va. 579.
And, to bar the plaintiff of recovery, the alleged act of negligence contributed must be such as he could, under the circumstances, reasonably anticipate would result in his injury. Fowler v. B. & O. R. Co., 18 W.Va. 579; Washington v. B. & O. R. Co., 17 W.Va. 190; Woodell v. West Va. Imp. Co., 38 W.Va. 23, 17 S.E. 386.
(g) When Plaintiff May Recover, Notwithstanding His Negligence.--There can be no recovery for an injury caused by the mutual fault of both parties; but the mere negligence of the plaintiff will not disentitle him to recover unless it was such that, but for that negligence, the misfortune would not have happened; nor, if the defendant might, by the exercise of care on his part, have avoided the consequences of the plaintiff's negligence. Chesapeake, etc., R. Co. v. Lee, 84 Va. 642, 5 S.E. 579; Sheff v. Huntington, 16 W.Va. 307; Johnson v. C. & O. R. Co., 91 Va. 171, 21 S.E. 238; Richmond Traction Co. v. Hildebrand, 99 Va. 24, 34 S.E. 888; Carrico v. West Va. Cent., etc., R. Co., 35 W.Va. 389, 14 S.E. 12.
And where defendant's negligence was the proximate cause of injury to the plaintiff, who did not, by want of common care himself, contribute to such injury, or where defendant, by exercise of care, could have prevented the consequences of plaintiff's carelessness, plaintiff may recover compensation. Clark v. Richmond, etc., R. Co., 78 Va. 709; Va. Mid. R. Co. v. Barksdale, 82 Va. 330.
Where the negligence of a defendant has been established, the fact that plaintiff has also been guilty of negligence is no defense, unless such negligence contributed to the injury. N. & W. R. Co. v. Perrow (Va.), 43 S.E. 614.
(h) Servant Leaving Safe Place without Cause.--If a servant, who has been assigned a safe place to work in, voluntarily leaves it, without any reasonable and proper cause for so doing, and, in consequence thereof, is injured, he has no remedy against the master. Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S.E. 869. See Darracott v. C. & O. R. Co., 83 Va. 288S.E. 511.
(i) Quantum of Negligence Not Material.--Negligence contributing as an efficient cause of injury will defeat an action therefor, irrespective of the quantum of negligence of the respective parties. Richmond Traction Co. v. Martin (Va.), 45 S.E. 886.
(j) All Facts and Circumstances to Be Considered.--In determining the fact of contributory negligence on the part of a plaintiff, what others did, and what he thought could be done in the exercise of due care, are facts to be considered. The solution of that question, however, ought not to be made to depend on those two facts alone, but on all the facts and circumstances of the case tending to prove or disprove such contributory negligence. Newport News, etc., Co. v. Bradford, 99 Va. 117, 37 S.E. 807.
(k) When Negligent Act Not Contributory Negligence.--It is 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 though no damage could have resulted to the plaintiff, had he not been originally negligent. Washington v. R. Co., 17 W.Va. 190.
(l) Negligence Not Presumed.--Contributory negligence is a matter of defense. The law does not presume it, and the burden of proving it rests on the defendant, unless the plaintiff's evidence develops it, in which event the burden is shifted. Watts v. Southern Bell Tel., etc., Co., 100 Va. 45, 40 S.E. 107. See Kimball v. Friend, 95 Va. 125, 27 S.E. 901; Southern R. Co. v. Bryant, 95 Va. 212, 28 S.E. 183; B. & O. R. Co. v. McKenzie, 81 Va. 71: Southwest Imp. Co. v. Andrew, 86 Va. 270, 9 S.E. 1015; N. & W. R. Co. v. Gilman, 88 Va. 239, 13 S.E. 475; B. & O. R. Co. v. Whittington, 30 Gratt. 805.
(m) Question of Estoppel.--A city, whose duty it was to maintain a sewer, cannot relieve itself from liability for damage caused by the collapse of such sewer by showing that a former owner of the property damaged would be estopped to claim such damages, or was guilty of contributory negligence in causing the collapse of the sewer, in the absence of proof of a covenant in the chain of title making such estoppel or contributory negligence run with the land. Richmond v. Gallego Mills Co. (Va.), 45 S.E. 877.
IV. THE PLEADING.
A. GENERAL RULE.
In actions for tort, the rule as to declarations is liberal, it being sufficient to describe the injury generally, without setting out particulars of defendant's misconduct. If it is specific enough to inform the defendant of what he is called upon to answer, so that he will not be surprised at the trial, it is sufficient. Humphreys v. Newport News, etc., Co., 33 W.Va. 135, 10 S.E. 39. See B. & O. R. Co. v. Whittington, 30 Gratt. 805 at 810; Hawker v. Baltimore, etc., R. Co., 15 W.Va. 628; Hoffman v. Dickinson, 31 W.Va. 142, 6 S.E. 53; McCoull v. Manchester, 85 Va. 579, 8 S.E. 379; Richmond Locomotive Works v. Ford, 94 Va. 627, 27 S.E. 509; Jones v. Old Dominion Cotton Mills, 82 Va. 140.
And so, a declaration which states a cause of action so that it could be understood by the party who is to answer it, by the jury who are to ascertain the truth of the allegations, and by the court who is to give judgment, and which distinctly sets forth when, where, in what manner and under what circumstances the plaintiff was injured by the defendant's defaults, negligence and improper conduct. is sufficient. McCoull v. Manchester, 85 Va. 579, 8 S.E. 379.
1. What Declaration Must Allege.
In an action for damages resulting from the negligence of the defendant, the plaintiff must allege and prove that defendant was negligent and that such negligence was the proximate cause of the injury. Bowers v. Bristol Gas & Elec. Co., 100 Va. 533, 42 S.E. 296; N. & W. R. Co. v. Cromer, 99 Va. 763, 40 S.E. 54; Chesapeake, etc., R. Co. v. Sparrow, 98 Va. 630, 37 S.E. 302; Humphreys v. Newport News, etc., Co., 33 W.Va. 135, 10 S.E. 39; Richmond Traction Co. v. Hildebrand, 99 Va. 48, 34 S.E. 888.
And a declaration for tort arising from negligence may allege the mere negligence generally, without stating the particular facts going to prove negligence, but must specify with reasonable certainty the main or primary act of omission or commission doing the damage; and the allegation that the defendant did the particular act causing the damage furnishes the predicate or basis for evidence of all such facts and circumstances of omission and commission as fairly tend to establish the negligence of the primary act, and to plead them specially would be to plead mere evidence instead of facts. Snyder v. Wheeling, etc., Co., 43 W.Va. 661, 28 S.E. 733.
2. What Declaration Need Not Allege.
It is well settled that the plaintiff, in an action for damages resulting from the negligence of defendant, need not, in his declaration, aver that he was not guilty of contributory negligence, that being a matter of defense to be alleged and proved, if it exists, by the defendant. Carrico v. W. Va., etc., R. Co., 35 W.Va. 389, 14 S.E. 12; Norfolk, etc., R. Co. v. Gilman, 88 Va. 239, 13 S.E. 475; Snyder v. Pittsburg, etc., R. Co., 11 W.Va. 14; Fowler v. B. & O. R. Co., 18 W.Va. 579; Washington v. B. & O. R. Co., 17 W.Va. 190; Johnson v. B. & O. R. Co., 25 W.Va. 570 at 571; Sheff v. Huntington, 16 W.Va. 307; Berns v. Gaston Gas Coal Co., 27 W.Va. 285; Winchester v. Carroll, 99 Va. 727, 40 S.E. 37. Compare Dun v. Seaboard, etc., R. Co., 78 Va. 645; Southwest Imp. Co. v. Andrew, 86 Va. 270, 9 S.E. 1015; B. & O. R. Co. v. Whittington, 30 Gratt. 805.
3. Sufficient Allegations.
Declaration alleged that defendant did not use proper care for the safety of plaintiff whilst engaged in working defendant's coal mines, and negligently permitted stones, slate, and coal to hang loosely in and about the roof of the mines where plaintiff was at work for defendant, and negligently failed to provide said roof with sufficient props to keep the loose stones, etc., from falling on plaintiff, etc. Held, declaration sufficiently charges negligence upon defendant, and need not deny contributory negligence on plaintiff's part, and it was not error to overrule the demurrer. Southwest Imp. Co. v. Andrew, 86 Va. 270, 9 S.E. 1015.
And a declaration by a servant against his master for an injury which properly charges the master with negligence, although it does not allege knowledge of the defect in the machinery which caused the injury, in the master, or that he ought to have known of such defect, and does not allege ignorance of such defects in the plaintiff, is sufficient. Hoffman v. Dickinson, 31 W.Va. 142, 6 S.E. 53.
So, where there are several counts in a declaration and no damages named in any but the last, the declaration is sufficient, as the damages claimed at the end of the declaration applies to each of the counts. Hoffman v. Dickinson, 31 W.Va. 142, 6 S.E. 53.
And a declaration against a street car company which charges that the company so " negligently, carelessly, recklessly and improperly" managed its cars as to inflict the injury complained of upon the plaintiff, who was in and upon the street of the city, sufficiently charges a breach of duty by the defendant, without giving other particulars. Norfolk R. & Light Co. v. Corletto, 100 Va. 355, 41 S.E. 740.
4. Insufficient Allegations.
But, in an action for damages against a railroad company, a count in the declaration, after setting out that the defendant was working a railroad in the county, with engines and cars for carrying passengers and freight, alleged that on a day named " the defendants conducted themselves so carelessly, negligently and unskillfully in the operation of their said business as to inflict upon W. (plaintiff's intestate) severe bodily injuries, by reason whereof he did, on the 28th of June, die," the count is defective in not stating where the deceased was or how he was injured. Balt. & O. R. Co. v. Whittington, 30 Gratt. 805.
So, too, in an action for personal injuries inflicted by the negligence of the servants of a railroad company, a declaration which states that the plaintiff was struck by the defendant's car while she was on its track, " upon which she just stepped," is bad on demurrer, as it intimates that the collision which caused the injury was simultaneous with the act of the plaintiff in stepping on the track. Richmond Traction Co. v. Hildebrand, 99 Va. 48, 34 S.E. 888.
V. EVIDENCE.
A. BURDEN OF PROOF.
If the defendant relies on the contributory negligence of plaintiff to defeat the action, he must prove it. B. & O. R. Co. v. Whittington, 30 Gratt. 805. See Piedmont Elec. Ill. Co. v. Patterson, 84 Va. 747, 6 S.E. 4; Southwest Imp. Co. v. Andrew, 86 Va. 270, 9 S.E. 1015; N. & W. R. Co. v. Gilman, 88 Va. 239, 13 S.E. 475; Kimball v. Friend, 95 Va. 125, 27 S.E. 901; Southern R. Co. v. Bryant, 95 Va. 212, 28 S.E. 183; Sheff v. Huntington, 16 W.Va. 307; Fowler v. B. & O. R. Co., 18 W.Va. 579; Snyder v. Pittsburg, etc., R. Co., 11 W.Va. 14; Watts v. Southern Bell Tel., etc., Co., 100 Va. 45, 40 S.E. 107; Richmond v. Leaker, 99 Va. 1, 37 S.E. 348; Southern R. Co. v. Bruce, 97 Va. 92, 33 S.E. 548; Gordon v. Richmond, 83 Va. 436S.E. 727.
Where negligence is the gravamen of the action, the law does not impute it, but the burden of proving the negligence rests on him who alleges it. N. & W. R. Co. v. Ferguson, 79 Va. 241; Overby v. C. & O. R. Co., 37 W.Va. 524, 16 S.E. 813; Massie v. Peel Splint Coal Co., 41 W.Va. 620, 24 S.E. 644; N. & W. R. Co. v. Cromer, 99 Va. 763, 40 S.E. 54.
B. ADMISSIBILITY OF EVIDENCE.
Evidence to Conform to Declaration.--When a declaration based on negligence states a particular act as the cause of the damage, no evidence of other acts causing it can be given. Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733.
Competent and Relevant Testimony to Be Admitted.--But all competent and relevant testimony should be admitted, even though the court should consider that no case of negligence had been made out. Roberts v. Alex. & F. R. Co., 83 Va. 312S.E. 518.
Former Acts.--That a street in a dangerous condition was used by others in the same manner and about the same time is relevant evidence to be considered in determining the question of due care on the part of one injured. Charlottesville v. Stratton (Va.), 45 S.E. 737; Newport News, etc., Co. v. Bradford, 100 Va. 231, 40 S.E. 900.
And testimony as to what had been the stopping place at that station is admissible in an action for personal injuries, when defendant contends that plaintiff was injured while alighting from its train before it reached its usual stopping place, while in motion, and the plaintiff denies such contention. Alexandria, etc., R. Co. v. Herndon, 87 Va. 193, 12 S.E. 289.
So, testimony is admissible to prove that the locomotive which fired plaintiff's wood had, on other occasions, emitted sparks and set fire to property along the railway, in order to show negligence. Brighthope R. Co. v. Rogers, 76 Va. 443.
And, in an action to recover damages for personal injuries inflicted by an electric railway company by the breaking of a trolley wire, evidence that this trolley wire had broken frequently recently theretofore is admissible. Richmond R., etc., Co. v. Bowles, 92 Va. 738, 24 S.E. 388.
Family Circumstances.--In an action under the statute, by the administrator of a party killed on a railroad track, against the company, the plaintiff may, upon the trial and before a jury has rendered a verdict, introduce evidence to prove that the deceased left a widow and children, and the number and ages of the children. B. & O. R. Co. v. Sherman, 30 Gratt. 602.
And, in an action for damages caused by the negligence of another, evidence that the plaintiff is a married man, with young children, is irrelevant and incompetent. Sesler v. Rolfe C. & C. Co., 51 W.Va. 318, 41 S.E. 216.
Change of Habit in Plaintiff.--So, also, in an action by the husband for the negligent killing of his wife, evidence is admissible that after his marriage there was a marked change for the better in his habits and pecuniary condition, as affecting the quantum of damages. Simmons v. McConnell, 86 Va. 494, 10 S.E. 838.
Showing Circumstances of Injury.--Where the question involved is, whether the plaintiff's intestate, by jumping from a car, the horses to which were running away, was guilty of contributory negligence, and it appeared there was an embankment near the place of accident, over which the car might have been thrown, it was proper to ask a witness, " How steep is that embankment?" Dimmey v. Wheeling, etc., R. Co., 27 W.Va. 32.
Violation of Statutes or Ordinances.--Where there are statutes and ordinances regulating the speed of railroad trains and street cars at certain places, any violation of them is competent evidence of negligence in an action brought by a traveler on the highway, even though only a penalty is imposed for their violation. Norfolk R., etc., Co. v. Corletto, 100 Va. 355, 41 S.E. 740.
Circumstantial Evidence. --Negligence may be proved by circumstantial evidence as well as by direct testimony. Norfolk, etc., R. Co. v. Brown, 91 Va. 668, 22 S.E. 496.
Evidence to Impeach.--And, in an action for damages based on negligence, the depositions of witnesses taken at the coroner's inquest are proper evidence to impeach such witnesses at the trial of the case. New York, etc., R. Co. v. Kellam, 83 Va. 851, 3 S.E. 703.
Collateral Facts.--But evidence to prove facts wholly collateral to the issue is inadmissible. Moore v. Richmond, 85 Va. 538, 8 S.E. 387.
Declarations.--And declarations of the mother of an injured child immediately after the accident are mere hearsay, and no more bind the estate of the deceased than would the declarations of any stranger. N. & W. R. Co. v. Groseclose, 88 Va. 267, 13 S.E. 454.
C. CONCLUSIVENESS.
Where other persons had passed over the obstruction which was the cause of injury to plaintiff was not conclusive of the question of contributory negligence, but such evidence should be considered in connection with all the facts and circumstances of the case in determining the question of due care on the part of plaintiff. Newport News, etc., R. Co. v. Bradford, 100 Va. 231, 40 S.E. 900. See same case in 99 Va. 117, 37 S.E. 807.
D. WITNESSES.
For the purpose of showing the speed at which a train was moving at the time of an accident, employees of the railway company and others, who are shown from their previous employments and occupations to have had frequent opportunities of observing trains in motion, are competent witnesses; the weight to be attached to their testimony being a matter for the determination of the jury in the light of all the circumstances. Norfolk, etc., R. Co. v. Tanner, 100 Va. 379, 41 S.E. 721.
VI. THE TRIAL.
A. PROVINCE OF COURT AND JURY.
1. Rules Governing.
Negligence is a question of fact peculiarly within the province of the jury. New York, etc., R. Co. v. Thomas, 92 Va. 606, 24 S.E. 264. See Robertsc v. Alex., etc., R. Co., 83 Va. 312S.E. 518; Danville v. Robinson, 99 Va. 448, 39 S.E. 122; Carrington v. Ficklin, 32 Gratt. 670; Richmond, R. etc., Co. v. Hudgins, 100 Va. 409, 41 S.E. 736.
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 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. Washington v. R. Co., 17 W.Va. 190; Johnson v. B. & O. R. Co., 25 W.Va. 570. See Tompkins v. Kanawha Board, 21 W.Va. 224 at 231; N. & W. R. Co. v. Burge, 84 Va. 63, 4 S.E. 21; Dun v. S. & R. R. Co., 78 Va. 645; Nash v. R. & F. R. Co., 82 Va. 55.
But when a given state of facts is such that reasonable men may differ upon the question of negligence, the determination of the matter is for the jury. When the facts are such that all reasonable men must draw from them the same conclusion, when there is no room for two reasonable opinions about it, then it becomes a question of law for the court. Klinkler v. Wheeling Steel & Iron Co., 43 W.Va. 219, 27 S.E. 237. See Raines v. Chesapeake, etc., R. Co., 39 W.Va. 50, 19 S.E. 565.
When Evidence Unambiguous.--If the facts are unambiguous, and there is no room for two honest and apparently reasonable conclusions, the court should not be compelled to submit the question to the jury as one in dispute. Hoge v. Ohio River R. Co., 35 W.Va. 562, 14 S.E. 152. See Johnson v. B. & O. R. Co., 25 W.Va. 570; Klinkler v. Wheeling Steel & Iron Co., 43 W.Va. 219, 27 S.E. 237; Raines v. C. & O. R. Co., 39 W.Va. 50, 19 S.E. 565.
Evidence Clearly Deficient.--When the evidence is so clearly deficient as to give no support to a verdict for plaintiff, if so rendered, the court should exclude the evidence from the jury. Klinkler v. Wheeling Steel & Iron Co., 43 W.Va. 219, 27 S.E. 237.
Undisputed Evidence.--And when the direct fact in issue is established by undisputed evidence, and such fact is decisive of the case, a question of law is raised, and the court should decide it. Dun v. Seaboard, etc., R. Co., 78 Va. 645.
Question of Law for the Court.--So, where there is no controversy in regard to the facts or inferences that may fairly be drawn therefrom, the question of negligence is one of law for the court to determine. Woolwine v. C. & O. R. Co., 36 W.Va. 329, 15 S.E. 81. See Hoge v. Ohio River R. Co., 35 W.Va. 562, 14 S.E. 152; Snoddy v. Huntington, 37 W.Va. 111, 16 S.E. 442.
Conflicting Evidence.--Where the evidence is conflicting, the question of negligence, or contributory negligence, is for the jury. Charlottesville v. Stratton (Va.), 45 S.E. 737. See Carrington v. Ficklin, 32 Gratt. 670; Tompkins v. Kanawha Board, 21 W.Va. 224; Hanley v. Huntington, 37 W.Va. 578, 16 S.E. 807.
But a judge is not bound to submit to the jury the question of negligence, though there be conflict of evidence as to some facts relied on to prove it, if, rejecting the conflicting evidence, the alleged negligence is proved by defendant's witnesses. Dun v. Seaboard, etc., R. Co., 78 Va. 645.
And if the facts be such as to lead reasonable minds to differ whether or not plaintiff was guilty of contributory negligence, the inferences to be drawn are not certain and incontrovertible, and, therefore, it is a question to be submitted to the jury. Carrington v. Ficklin, 32 Gratt. 670. See Kimball v. Friend, 95 Va. 125, 27 S.E. 901; Bass' v. Norfolk R., etc., Co., 100 Va. 1, 40 S.E. 100.
Proximate Cause.--Whether the negligence of the plaintiff was the proximate cause of the injury is a question for the jury. Sheff v. Huntington, 16 W.Va. 307.
But where the evidence is not contradictory, proximate cause is a question of law to be determined by the court, and not a question of fact to be submitted to the jury. Schwartz v. Shull, 45 W.Va. 405, 31 S.E. 914.
Injury to Live Stock--Withdrawing Issue from Jury.--In a suit against a railway company for negligently injuring or killing live stock on its track, it is not proper for the court to withdraw the decision of the issue from the jury by excluding the plaintiff's evidence or by directing the jury to find for the defendant, where there is any evidence fairly tending to prove the negligent act of the defendant. Hoge v. Ohio River R. Co., 35 W.Va. 562, 14 S.E. 152. See Smith v. Parkersburg Co-Op. Ass'n, 48 W.Va. 232, 37 S.E. 645; Carrico v. West Va. Cent., etc., R. Co., 35 W.Va. 389, 14 S.E. 12.
When Reversible Error to Exclude Evidence.--But it is not error for which a judgment will be reversed, to exclude evidence from the jury, unless such exclusion was to the prejudice of the exceptor. Tompkins v. Kanawha Board, 21 W.Va. 224.
Determining Negligence of Infant.--In considering how far an infant has been guilty of contributory negligence, it is proper for the jury to consider the age, experience and understanding of the infant. Washington, etc., R. Co. v. Quayle, 95 Va. 741, 30 S.E. 391.
Special Questions.--While two special questions covering the same inquiry should not be put to the jury, yet, if one, covering some matter of another, is so drawn as to more definitely and pointedly inquire as to a particular matter controlling the case, it should be given. Veith v. Hope Salt & Coal Co., 51 W.Va. 96, 41 S.E. 187.
Demurrer to Evidence--Rule.--On a demurrer to evidence, demurrant is entitled to the benefit of all his unimpeached evidence not in conflict with that of his adversary, and of all inferences that necessarily follow therefrom. Bowers v. Bristol Gas & Electric Co., 100 Va. 533, 42 S.E. 296.
If the defendant demur to the plaintiff's evidence, and the evidence fails to show that the defendant was, as a legal proposition, guilty of negligence, but shows a case in which the negligence of the defendant was properly a mixed question of law and fact, and the jury could not unreasonably infer from the evidence that the defendant was guilty of negligence, which caused the plaintiff's injury, but this evidence of the plaintiff is such that it would obviously require the jury, if they should find there was any negligence in the case, to find that it was mutual, the proof of the negligence of the defendant being exactly the same facts and circumstances which necessarily establish the contributory negligence of the plaintiff, if they establish the negligence of the defendant, upon such a case, the court should sustain the defendant's demurrer to the plaintiff's evidence; and in such case, if asked by the defendant, the court should exclude all the plaintiff's evidence from the jury. Gerity v. Haley, 29 W.Va. 98, 11 S.E. 901.
If the defendant demurred to the plaintiff's evidence, and the evidence showed that the defendant was, as a legal proposition, guilty of the negligence which caused the plaintiff's injury, but further, as a legal proposition, proved that the plaintiff was guilty of contributory negligence, the court should sustain the defendant's demurrer; or, in such a case, the court ought, on the motion of the defendant, to exclude from the jury all the plaintiff's evidence. Gerity v. Haley, 29 W.Va. 98, 11 S.E. 901.
Motion to Strike.--After the defendant has given in his own evidence, or a material part thereof, his motion to strike out all the evidence, or plaintiff's evidence, on the ground that it is not sufficient to sustain the issue on plaintiff's part, should not be granted, but he should be left to his demurrer to the evidence. Woodell v. W.Va. Imp. Co., 38 W.Va. 23, 17 S.E. 386.
B. INSTRUCTIONS.
1. Proper.
In an action by a passenger against a carrier and a third person, the court instructed the jury that if the injury was caused by the negligence of both defendants, the jury should find against both, but if by that of one, they should find against him, and refused to instruct that extraordinary care was required of a carrier and only ordinary care of a third person. It was no error as against the third person. New York, etc., R. Co. v. Cooper, 85 Va. 939, 9 S.E. 321.
And if there is no evidence tending to prove plaintiff's case, then, after all plaintiff's evidence is in, it is not error in the court to instruct the jury, directly or indirectly, to return a verdict for defendant. Hoge v. Ohio River R. Co., 35 W.Va. 562, 14 S.E. 152; Woolwine v. C. & O. R. Co., 36 W.Va. 329, 15 S.E. 81.
2. Improper.
In an action to recover damages for a personal injury, it is necessary to show that the injury was caused by the negligence of the defendant or his servant. It is error, therefore, to instruct the jury to find for the plaintiff, if they believe that the injury was caused by the defendant's servants. The omission of the element of negligence is fatal, and is not cured by other correct instructions given. Richmond Traction Co. v. Hildebrand, 99 Va. 48.
And when the court instructs the jury that, if they believe from the evidence certain hypothetical facts mentioned in the instructions, then they must find for the party plaintiff or defendant, as the case may be, but omits from such statement of facts a material fact which there is evidence tending to prove, which. being believed from the evidence, would require a different verdict, such instruction is erroneous, and, being excepted to and not cured, is ground for reversal. Woodell v. W.Va. Imp. Co., 38 W.Va. 23, 17 S.E. 386.
Where the court instructs as to the law of contributory negligence, and then adds, " A plaintiff may, under certain circumstances, be entitled to recover damages for an injury, although he may, by his own negligence, have contributed to produce it," is erroneous, because misleading. Richmond, etc., R. Co. v. Pickeheimer, 85 Va. 798, 10 S.E. 44.
And it is error to give an instruction which there is no evidence to support, as it tends to mislead the jury. Richmond Traction Co. v. Hildebrand, 99 Va. 48. See Norfolk R., etc., Co. v. Corletto, 100 Va. 355, 41 S.E. 740.
3. Inconsistent.
While instructions must be read as a whole, and defects in one instruction may be cured by a correct statement of the law in another, where the court can see that, taking the instructions as a whole, the defect could not have misled the jury, yet, if two instructions are inconsistent and contradictory, the verdict will be set aside, as it is impossible to say whether the jury was controlled by the good or bad in arriving at a conclusion. Richmond Traction Co. v. Hildebrand, 99 Va. 48; W., A. & Mt. V. E. R. Co. v. Quayle, 95 Va. 741, 30 S.E. 391; Winchester v. Carroll, 99 Va. 727, 40 S.E. 37.
4. Modification of Instructions.
Although an instruction propounds the law correctly, and the court modifies it, the judgment will not be reversed for that reason, unless the modification was to the prejudice of the exceptor. Tompkins v. Kanawha Board, 21 W.Va. 224.
5. When Refused.
It is not error to refuse instructions when the propositions of law, although correctly stated therein, are sufficiently covered by other instructions which are granted. N. & W. R. Co. v. Tanner, 100 Va. 379, 41 S.E. 721.
And an instruction that contains an abstract proposition and sheds no light on the case is properly refused. Norfolk, etc., R. Co. v. Burge, 84 Va. 63, 4 S.E. 21.
6. When Court's Duty to Give.
Where the object of an instruction is merely to define the duty of a defendant, arising out of a supposed state of facts, and it does not purport to contain a complete hypothesis on which a plaintiff suing for injuries, caused by alleged negligence is entitled to recover it is not necessary to refer to the duty or supposed negligence of the plaintiff; but, if the defendant asks an instruction which correctly propounds the law as to the duty of the plaintiff, though it makes no mention of defendant's duty, it should be given. The two together constitute the law of the case on that point. Atlantic, etc., R. Co. v. Reiger, 95 Va. 418, 28 S.E. 590.
7. Effect if Proper Instructions Disregarded.
Where instructions are given by the court which properly propound the law applicable to the facts proven, the jury cannot disregard such instructions, and if they do so their verdict will be set aside. Fisher v. West Va., etc., R. Co., 42 W.Va. 183, 24 S.E. 570.
[*]For monographic note on Negligence, see end of case.