Hudson v. Norfolk & Western Railway Co.

Whether the trial court instructed for defendant on the ground that plaintiff's intestate's death resulted from his disobeyance of the rules promulgated for his safety in accidents of this character, or whether because the evidence did not sustain the averments of negligence charged in the declaration is not clear. The duties of defendant set out in the declaration are: to employ competent servants and employees; to furnish a safe place to work; to promulgate proper rules and regulations; to prevent defects in its cars, appliances and tracks; and to furnish proper tools and machinery. The declaration then charges that each of these duties was breached; and it is then averred that on July 5, 1926, plaintiff's intestate was in defendant's employ as a locomotive engineer, and while in discharge of his duties at the Auville yard, "the defendant by its servants, agents and employees so negligently conducted itself as that, due to the negligence of the defendant aforesaid, the said locomotive engine on which the plaintiff's decedent was at the time working and employed was derailed, wrecked and thrown from said track and plunged over an embankment", resulting in his death. Declarations in this kind of suit must aver the duty of the defendant, the existence of negligence in its performance or non-performance, and specify the act resulting in damages. It need not detail all the facts evidencing negligence.Snyder v. Wheeling Elec. Co., 43 W. Va. 661, 39 L.R.A. 499, 64 Am. St. Rep. 922; Wills v. Coal Co., 97 W. Va. 476,125 S.E. 367; Pallatto v. Cherry River Paper Co., 106 W. Va. 60,144 S.E. 721. No particular act of negligence is charged except the omission to perform the duties above set out. What particular act of negligence on the part of defendant which caused the locomotive to plunge over the embankment can be found in the declaration? If it was caused by reason of the non-performance of the duties charged, then the declaration will cover it, and the court can consider it; on the other hand, if the act did not arise from the non-performance of the duties charged, a verdict could not stand. The evidence must support the averments of negligence in the declaration in order to sustain a verdict for plaintiff.

It is now argued on petition for rehearing that when Hudson ran by the red block he had eighty to ninety feet before he reached the "bug" or derail, and while he consumed nine seconds if travelling at ten miles per hour, or seven seconds if going at eight miles per hour, the towerman should have removed the bug from the track after Hudson ran by the danger signal. Thus the doctrine of the "last clear chance" is invoked. Whether the evidence of circumstances surrounding the injury is of such probative value to warrant the application of this doctrine, (McLeod's Adm'r. v. Charleston Laundry Co., 106 W. Va. 361,145 S.E. 756), we need not necessarily decide. But no one says the towerman saw Hudson pass the red signal board or where he (towerman) was standing at that particular time, or whether he would have had time to throw the "bug" if he did see him pass, or whether it would have been his duty so to do, in view of the passenger train then on the block which might arrive at any moment. Thus we find the doctrine of the last clear chance does not properly arise under the averments of the declaration, nor is it applicable under the evidence.