Wehrle v. Wheeling Traction Co.

Miller, Judge : Error to the circuit court of Ohio County in an action by plaintiff for personal injuries alleged to have been sustained by him at the intersection of Forty-first and Wood Streets, in the City of Wheeling, on June 26, 1917, the result of the alleged negligence of defendant, its servants and employees in operating a certain coal car at a high, excessive and dangerous rate of speed, whereby plaintiff when passing over defendant’s track at that intersection, with due care, with his horse and wagon, was struck by said car with great force and violence, his collar bone and shoulder blade broken, his right side and arm injured, and whereby thereafter and up to the time of the suit, he had been and was still unable to use his arm and hand as before said injury. The verdict and judgment complained of was for $5,000.00. On the trial, by stipulation of counsel and rulings of the court, all issues not presented by the first count of the declaration were withdrawn from consideration of the jury. Relying on this state of the pleadings and the evidence relevant thereto, the first point of error urged upon us is that the court below by plaintiff’s instruction number five, given, allowed him to introduce the issue of supervening negligence imputed to defendant. This point is based on the assumption that the first count, to which the issues were so limited, did not allege any fact or circumstance putting in issue the fact of such supervening negligence of the defendant. This proposition is sought to be sustained mainly on our cases of Hawker v. B. & O. R. R. Co., 15 W. Va. 628, and Snyder v. Wheeling Electrical Co., 43 W. Va. 661, presently to be considered. Of course the universal rule affirmed and applied in Wilhelm v. Parkersburg, [400] Marietta & Interurban Railway Co., 74 W. Va. 678, and other cases cited, is that instructions to the jury should be limited to the issues presented by the pleadings and proofs in the case. The negligence averred in the first count is; “That the servants or employees of said defendant company at the time and place indicated negligently and carelessly ran said car over and upon the said intersection of the said 41st and Wood Streets at a high, excessive and dangerous rate of speed,” where the plaintiff was then crossing with due care, and where the motorman of said car had a clear and unobstructed view of plaintiff and his wagon on the crossing for a distance of over eight hundred feet, but that through the negligence and carelessness of defendant through its agents and servants “operating and controlling said car, at a highly dangerous and excessive rate of speed as aforesaid, the plaintiff’s wagon was struck by the said car before he was able to drive off said intersection and the tracks of said defendant company, with such great force and violence that he sustained the injuries of which he complains.” So the contention is that in this count plaintiff was limited to the'sole issue whether defendant, at the time of said injury, was operating said car “at a high, excessive and dangerous rate of speed”, and that under these averments the issue of last clear chance and supervening negligence as excusing plaintiff’s alleged contributory negligence introduced by defendant in its evidence and also submitted to the jury by instructions given on its behalf, were not covered by the pleadings. But in our opinion said first count, fairly interpreted, must he regarded as charging negligence generally on the part of the defendant and its servants in the operation of the car, not limited solely to the high, excessive and dangerous rate of speed averred. Other facts and circumstances of an evidential nature are set out in this count; as for instance the distance at which the motorman could have seen plaintiff when he started across the track, the fact that the injuries were incurred at a public crossing where plaintiff was within plain view of the motorman for a long distance and for a sufficient time to have enabled him to stop his car in time to avoid the injury. These averments sufficiently charge and impute general negligence to the motorman in charge .of the car, as to admit of proof of supervening negli [401] gence on his part, assuming contributing negligence on the part of plaintiff, of which however the jury acquitted him by their answer to defendant’s special interrogatories. The declaration in the case of Hawker v. B. & O. R. R. Co., supra, after averring negligence generally,- proceeded to aver that the negligence relied on consisted solely in the acts of the defendant after seeing plaintiff’s cattle upon the track in carelessly and negligently driving the locomotive upon them. The declaration in this case, properly interpreted, does not so limit plaintiff in his proof.. A familiar rule of pleading referred to and applied in Snyder v. Wheeling Electrical Co., supra, is that a declaration will be treated as alleging by implication every fact which can be implied from its averments by the most liberal intendment. Hogg’s PI. & Forms,, §140. The theory of last clear chance and supervening negligence is never resorted to unless the defendant interposes the defense of contributory negligence. In Bralley v. Railway Co., 66 W. Va. 462, we decided that a declaration charging defendant with a specific act, injurious to plaintiff, and averring general negligence in the performance of the act, is sufficient, and that it is not necessary to set out in detail all the specific acts constituting the negligence complained of. The leaning of the courts now is to a more liberal rather than a strict rule of pleading in this regard. Evidences of such liberality are shown in some of the cases from other states cited and relied on by plaintiff’s counsel. Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34. So. 124; Rockford, etc. R. R. Co. v. Phillips, 66 Ill. 548; Bush v. St. Jos. & Benton Harbor Street Ry. Co., 113 Mich. 513. In the first case the declaration alleged a high and excessive rate of speed, under which.evidence of failure to blow a whistle when approaching a crossing was admitted. When street railways use the public streets of a populous city, their rights at street crossings are not superior to the rights of other travelers. Ashley v. Traction Co., 60 W. Va. 306; Riedel v. Wheeling Tract. Co., 69 W. Va. 18. The case of Bassford v. Pittsburgh, etc. Ry. Co., 70 W. Va. 280, involved a steam railroad alleged to have been operated at a dangerous rate of speed, where the rule is different. Our conclusion, threefore, is that the .first point of error must be overruled. The next point involves the criticism of plaintiff’s instruc [402] tion number six. This instruction on the question of contributory negligence, intended to meet the theory of defendant manifested by the character of its evidence offered and the instructions propounded and given on its behalf, simply told the jury that it was not negligence for one to attempt to cross a street railway track in front of an approaching car if in doing so he exercised that judgment and care which a reasonably prudent and careful person would do under the circumstances, and that if the plaintiff exercised such- judgment and care in driving over said track at the time of his injury, and looked immediately before crossing the track and saw the car three hundred feet away, he was not guilty of negligence. It is conceded that this is substantially the law of Ashley v. Traction Co., supra, except the assumption therein that plaintiff looked immediately before crossing the track, a fact it is contended not supported by the evidence. We think this word fairly descriptive of what plaintiff says he did, for as he describes his conduct he looked before starting across defendant’s track, and apparently nothing intervened between his act of looking and starting. We do not appreciate the objection. We see no virtue in this point, and it also must be overruled. The third point urged for reversal is that plaintiff’s instruction number five was inconsistent with defendant’s instruction "No. N.” This point is founded on the theory already disposed of, that the pleadings did not admit of any issue on the theory of the supervening negligence of the defendant, covered by plaintiff’s instruction number five. As that contention has been overruled; defendant can not complain of its supposed conflict with its instruction "No. N.” In so holding we are not called upon to consider the question of waiver of error by defendant by the submission of its instruction on the same subject. We think if defendant on the meager evidence of contributory negligence was entitled to present its instruction to the jury on that theory, plaintiff was on the pleadings and proof entitled to present the theory of the supervening negligence of the defendant as the proximate cause of his injuries. The point that defendant’s instruction “No. I.”, defining contributory negligence, was erroneously rejected, we think is with403 ont merit. The ¡jury was sufficiently instructed on this subject by other instructions given at the instance of both parties. Two propositions are urged in support of defendant’s motion, overruled, to set aside the verdict; (1). that plaintiff’s own negligence was the proximate cause of his injuries, (2) that the verdict was excessive. The special verdict of the jury responded specifically to the first proposition, and we think found cor-, reetly. But was the verdict excessive? It was large, considering the nature of the injuries; but can we say it was so excessive as to evince fraud, partiality or prejudice, justifying us in setting it aside? There was some evidence tending to show permanent injury, supported by symptoms existing at the time of the trial. The record shows that defendant’s physician and surgeon was permitted to examine plaintiff during the trial, presumably with the view of determining the nature and extent of the injuries, He was not afterwards called by either party to testify on the subject. Lastly, it is urged that the judgment' must be reversed on the ground that it erroneously gives interest from the date of the verdict, contrary to the holding of the court in Easter v. Virginian Railway Company, 76 W. Va. 383. In the recent case of Long v. Pocahontas Consolidated Collieries Co., 83 W. Va. 380, 98 S. E. 289, Judge Williams dissenting, we ignored the ruling in the Easter case on this question of interest, and in reversing the judgment below in a tort action rendered judgment for the plaintiff with interest from the date of the verdict. In the Easter case we seem to have been misled by Talbott v. W. Va. C. & P. Ry. Co., 42 W. Va. 560, opinion by Judge Holt, decided subsequently to the amendments of sections 14, 16 and 18 of chapter 131 of the Code, by chapter 120 Acts of the Legislature, 1882, and to have overlooked our decision in Campbell v. City of Elkins, 58 W. Va. 308. As Judge Holt in Talbott v. W. Va. C. & P. Ry. Co. refers only to Hawker v. B. & O. R. R. Co., supra, and Murdock v. Insurance Co., 33, W. Va. 407, the latter case involving a judgment rendered after, but a verdict rendered before said amendments, he seems to have overlooked, the effect of the amendments of 1882. In Campbell v. City of Elkins, due regard seems to have been had to the amendments of 1882, and [404] the conclusion there reached that in tort actions like the present the judgment should bear interest from the date of the verdict, as provided in section 16 of chapter 131, the only provision of the law applicable in such cases. After a full review of these decisions, we are fully satisfied that in actions of tort the judgment should bear interest from the date of the verdict, and that the point of error on the question of interest must be overruled. Seeing no reversible error, our conclusion is to. affirm the judgment. Affirmed.