Norfolk & Western Railroad v. H. I. Shott

Harrison, J., delivered the opinion of the court. This is an action to recover damages for personal injuries sustained by the defendant in error on the 18th of June, 1892, — 44 — while traveling-as mail agent and postal clerk on one of the passenger trains of the Norfolk and Western Railroad Company. The injuries complained of were received in a collision between a passenger train going southwest, and a train of freight cars moving northeast, which occurred near New River station, in the county of Pulaski, Va. The accident was the result of gross negligence in the conductor of the passenger train, in failing to obey an order to wait at New River station for the freight train with which he collided. This suit was brought in the Circuit Court of Pulaski, and resulted, on the 8th day of August, 1893, in a verdict for the plaintiff for $7,000. The court overruled a motion for a new trial, and entered judgment upon the verdict. It is established by the evidence that the plaintiff was an employee of the Federal Government, and was on the passenger train in the legitimate discharge of his duty as mail agent and postal clerk, under some contract between the Government and the defendant company as to carrying the United States mail. The relation the plaintiff bore to the railroad company, as a common carrier, imposed upon the defendant company the same degree of care for the plaintiff that it was bound to exercise toward every passenger upon its train. The plaintiff was in no sense an employee of the defendant company, and can only be treated as a passenger. The negligence of the company is not denied, and we do not understand the plaintiff’s right of recovery to be seriously controverted. The first error assigned is the refusal of the Circuit Court to sustain the demurrer to the declaration. .No reason is suggested in support of this assignment, and the court, perceiving no ground of objection to the declaration, is of opinion that the demurrer was properly overruled. The second assignment of error is the refusal of the Circuit Court to continue the case, on the motion of the defend — 45 — ant company, on the ground of the absence of a material witness. The court in which a trial tabes place is in a position to determine, better than any one else can do, the sufficiency of grounds relied on for a continuance; hence it is that an appellate court does not interfere, unless the judgment of the court below, on such a motion, is plainly erroneous. It has been repeatedly held by this court that a motion for a continuance is addressed to the sound discretion of the court, under all the ch'cumstanees of the case; and, though an appellate court will supervise the action of the lower court on such a motion, it will not reverse a judgment on that ground, unless plainly erroneous. Hewitt's Case, 17 Gratt. 627 ; Harman v. Howe, 27 Gratt. 676 ; Rousell's Case, 28 Gratt. 930 ; Walton's Case, 32 Gratt. 855 ; Bland, and Giles County Judge Case, 33 Gratt. 443 ; Keesee, Clark et als. v. Border Grange Bank, 77 Va. 129, and Mister's Case, 79 Va. 5. In the case at bar the absent witness was an employee of the defendant company, living within eight or ten miles of the court-house where the trial took place. He was not summoned in the mode prescribed by law, by a subpcena placed in the hands of the sheriff to be served, but the plaintiff in error undertook the responsibility of summoning the witness and having him present at the trial. After a careful examination of all the facts and circumstances relating to this assignment of error, we have reached the conclusion that the action of the Circuit Court in overruling the motion for a continuance was not so clearly improper, or plainly erroneous, as to justify this court in setting aside the judgment on that ground. The third assignment of error is as follows: “Because of the erroneous rulings of the court below, as set out in Bill of Exceptions No. 3.” — 46 — Bill of Exceptions Bo. 3 covers 124 pages of evidence, an examination of which shows that, in the progress of the trial, numerous points were saved both by the plaintiff and defdndant as to the propriety of certain questions, and the admissibility of the evidence contained in certain answers. The bill of exceptions does not specify which rulings of the court upon these numerous points are relied on as erroneous. The failure to take a bill of exceptions alleging errors committed by the court, in the admission or rejection of evidence, is treated in the appellate court as a waiver or abandonment of those objections. When exception is taken to the admission or exclusion of evidence, the bill must be so framed as to point out the particular error complained of, clearly and distinctly; otherwise the exception will be unavailing. Judge Marshall, in delivering the opinion of the court, in Scott v. Loyd, 9 Peters 418, 442, says: “Although the plaintiff’s counsel objected to the question, and said that he excepted to the opinion of the court, no exception is actually prayed by the party and signed by the judge. This court cannot consider the exception as actually taken, and must suppose it was abandoned.” This decision has been quoted with approval by this court in Fry v. Leslie, 87 Va. 269, 275, and Trumbo's Adm'r v. City Street-Car Co., 89 Va. 780, 781, and perhaps in other cases. In the case of Holleran v. Meisel, lately decided by this court, (91 Va., 143, 145,) Judge Biely, in delivering the opinion of the court, says : “ It is the. office of a bill of exceptions to set forth a specific and definite allegation of error, and so much of the evidence as is necessary to a clear apprehension of the propriety or impropriety of the ruling made by the court, and if it fails to do this the exception will prove unavailing.” It may now be regarded as a settled rule of practice in this State that in order to have the benefit in an — 47 — appellate court of exceptions taken, in the progress of a trial, to the ruling of the court upon a motion to reject or admit evidence, it is necessary that a bill of exceptions should be asked for, and signed by the judge, clearly and distinctly pointing out each erroneous ruling complained of; otherwise the objection taken will be regarded as abandoned. It is true there may be more than one exception embraced in one bill, thus making it a bill of exceptions, as was held in Brown v. Hall, 85 Va. 146 ; but where this is done each separate exception embraced in such bill must set forth clearly and distinctly the ground of objection relied on, so that there will be no confusion with others therein contained. In the case at bar the bill of exceptions under consideration is a single bill of exception, setting forth all the evidence introduced on the trial, taken upon the refusal of the court to set aside the verdict and grant a new trial. It does not conform to the rule of practice already laid down, and, therefore, the numerous objections made to the admission and rejection of evidence at the time it was taken must be regarded by this court as abandoned. It is proper, however, to say that we have considered all such objections, and are of the opinion that the points saved in regard thereto would have been unavailing if said bill of exceptions had been properly taken. It is further assigned as error that the verdict of the jury for $7,000 is excessive. The law as to how far courts will interfere with the verdicts of juries is very well settled. The question to be considered is not whether the court, if acting in the place of the jury, would have given more or less than the amount of the verdict, but whether the damage awarded by the jury is so large or so small as to indicate that the jury has acted under the impulse of some undue motive, or some gross error or misconception of the subject. Where there is no legal measure of damage, the court will ordinarily leave — 48 — the question of amount to the sound discretion of the jury. Judge Daniel, speaking for this court, in the case of Farish & Co. v. Riegle, 11 Gratt. 697, 722, where the action was for injuries sustained by the upsetting of a stage-coach, and the jury gave $9,000 damages, says: “There is no rule of law fixing the measure of damages in such a case, and it cannot be reached by any process of computation. In cases of the kind the judgment of the jury must govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case”; citing Tinney v. Ashley, 16 Pick. 547. Applying these well-settled principles to this case, we cannot undertake to say that the damages allowed by the jury are unreasonable. Another assignment of error is that counsel for the plaintiff, in his closing argument, used improper and illegal arguments to the jury, calculated to improperly influence their verdict. The language objected to is not in the record. The certificate shows that no objection was made to the court during the argument complained of; that objection was not made on this account until after the verdict of the jury, and until after the motion was made for a new trial and overruled; that then the objection was made for the first time, as ground in support of a second motion to set aside the verdict and grant a new trial. It is clear that this objection was not made in time to be availing. It comes too late after verdict, if the court can see that under all the circumstances a proper verdict has been rendered. In the case of Hiram Price v. Commonwealth, 77 Va. 393, where the remarks complained of were prohibited by the-statute, this court held that where, in such case, accused does not testify, it is improper for the prosecuting attorney — 49 — to comment on that fact. But, if exception is not taken thereto till after verdict, it is too late, unless under all the circumstances the court can see that a proper verdict has been rendered, and the accused not injured by the comment. The several assignments of error already considered constitute the grounds upon which the plaintiff in error based its motion for a new trial. It follows from what has been said that this motion was properly overruled. Upon the whole case, and for the reasons given, we are of opinion that the judgment must be affirmed. Affirmed.