CHARLESTON.

#### Nimrod T. Freeman *v.*Monongahela Valley Traction Company *et al.*

(No. 4981.)

Submitted May 21, 1924.

Decided November 11, 1924.

1. Appeal and *Error*— 'Overruling *of Demurrer to Declaration Having\ one Good and one Bad Count, Held Not Ground for Reversal of Judgment on General Verdict.*

In an action for wrongful injury, if one of the two counts in the declaration he good, the other had, even though there he a demurrer to the declaration and to each count thereof, and said demurrer is improperly overruled by the trial court, a general verdict giving entire damages will he good, and does not constitute grounds for reversal hy this court. Code section 13, chapter 133. (p. 315).

(Appeal and Error, 4 C. J. §§2900, 319G [1926 Anno.])

2. *Trial*— Whether *Positive and Negative Testimony is Conflicting so as to Require Submission to Jury, Depends on Whether Negative Testimony has Probative Value; Negative*
      *312
      *Testimony that Grossing Signals Were Not Heard as Against Preponderance of Positive Evidence that Signals Were Given, Does not Make Question for Jury.*

Whether a conflict arises between negative and positive testimony depends upon the facts and circumstances of each particular case from which it may be determined whether the negative testimony has any probative value. As a general rule, a conflict in the evidence does not arise such as to require submission to the jury of the question whether signals were given for a crossing, where there is a preponderance of positive testimony that the signals were given, as against purely negative testimony that the signals were not heard. Por the reason that the evidence of those who did not hear is not in conflict with the evidence of those who did hear. (p. 318).

(Railroads, 33 Cyc. p. 1104; Trial, 38 Cyc. p. 1537.)

3. *Same*— Instruction *Eailmg to Refer to Contributory Negligence Erroneous and not Cured by Others.*

Where, in an action for wrongful injury, the defendant relies upon the contributory negligence of the plaintiff as being the proximate cause of the injury, a hypothetical instruction directing a finding for plaintiff, which does not embody a reference to the facts tending to establish contributory negligence, and wholly omits any reference to such defense, is reversible error; and the error is not cured by giving other instructions either for or against the defendant, (p. 321.)

(Trial, 38 Cyc., p. 1787.)

4. *Railroads*— Last *Clear Chance Doctrine Stated; Liability Under Last Clear Chance Doctrine for Jury.*

The duty imposed upon a motorman on an interurban elec, trie railway, under the last clear chance doctrine, is to use ordinary care to discover a traveler upon a public crossing, and after discovering him to use like care to avoid injuring him. Failure to perform either duty is actionable negligence, and if from the evidence there is a doubt as to whether-he did use such care, then the question is for the jury, ip. 320).

(Railroads, 33 Cyc., pp. 961, 978, 1105.)

(Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Error to Circuit Court, Harrison County.

Action by Nimrod T. Freeman against the Monongahela Yalléy Traction Company and another. Judgment for plaintiff, and defendant brings error.

*Reversed, verdict set aside; remanded.*

*313
      *Stepioe & Johnson,*for plaintiffs in error.

*E. Q. Smith, David D. Johnson*and *Frank G. Fisher,*for defendant in error.

McGinnis, Judge ;

This action is in trespass on the case, brought by the plaintiff, Nirprod T. Freeman, against the Monongahela Valley Traction Company, and William Musgrave, a motorman for the said Company, for $10,000.00 damages to his automobile, and alleged personal injuries.

The declaration consists of two counts. The first count is predicated upon the negligence of the said company for failing to provide gates, a watchman, flagman, gong or electric bell at the crossing to warn persons traveling upon and over said crossing of the danger of approaching cars; and that the defendants so carelessly, negligently and improperly operated the interurban ear as to cause the damage to plaintiff complained of. The second count charges the defendants with negligence in that the interurban car was run at an unlawful and excessive rate of speed; and that the defendants failed to give such warning signals as is required of them by law.

The defendant demurred to the declaration and to each count thereof, which said demurrers were overruled by the court, whereupon the defendants pleaded the general issue. A trial was had which resulted in a verdict and judgment for the plaintiff in the amount of $1,000.00; and the ease is now before this court on a writ of error. >

The facts shown by the evidence so far as they are material to the disposition of the errors assigned, are that the plaintiff and his brother had been rabbit hunting and were on their way, in an Overland automobile owned and driven by the plaintiff, to the town of Jane Lew to sell some rabbits and to buy some ammunition. It appears that the collision occurred at Beeghley Crossing. This crossing is about one thousand feet south of the interurban station at Jane *314Lew, and about 440 feet south of the Company’s whistling post at Hackers Greek Bridge, and is “Blind Crossing,” so called because the county road and the track of the defendant Company intersect at almost right angles, and each lie in deep cuts, the county road for a distance of 260 feet and the railway for a distance of 400 feet from the point of intersection, and because of these cuts it is impossible for a traveler upon the highway to see an approaching interurban ear until he arrives at a point a short distance from the crossing, nor can the motorman on an interurban car see an approaching vehicle on the county road until he arrives within a short distance therefrom. The testimony of the plaintiff and his brother shows that when they entered the cut in the county road above described, they were driving the automobile at the rate of 8 to 10 miles per hour, and that this rate of speed was maintained until they were within 15 or twenty feet of the crossing, and that at this point the speed of the automobile was reduced to 3 or 4 miles per hour, with the car in second gear; that within the said distance of 15 or 20 feet of the crossing the plaintiff begun to look and listen for an approaching interurban car, looking first in the direction of Jane Lew, the direction from which the car came which caused the injury, then in the direction of Clarksburg, then back again towards Jane Lew, and that by this time the front wheels of his automobile were on the track, and then he, for the first time became aware of the approach of the interurban car, and it was then only a distance of about 50 feet from him, and coming at a rapid rate of speed; that as above stated the car was in second gear, and that he threw on all the gas he could and although the engine responded fully and immediately to the accelerator he was unable to clear the track, and the interurban car struck the automobile just over the rear axle and dragged it and its two occupants a distance of 56 feet past the point of collision, practically destroying the automobile, and inflicting certain personal injuries upon the plaintiff from which he had not fully recovered at the time of trial although two years had elapsed since the collision. The plaintiff and seven other witnesses testified that if the *315motorman sounded any signals for the crossing that they did not bear tbem, but none of tbem testified positively tbat the signals were not given. The speed of the interurban car was fixed by plaintiff’s witnesses as being from 20 to 25 miles per hour.

For the defendant it was shown that the interurban car was running on schedule time, at a moderate rate of speed, along a perfectly straight track; that the motorman did not see the plaintiff until he was within 75 feet of him, and that he immediately applied the brakes and got the maximum results therefrom, but as the car weighed from 17 to 19 tons it was impossible to stop it in that distance. The defendant motorman, the conductor on the ear, and eight other witnesses testified that the motorman gave the customary signals at the whistling post at Hackers Creek Bridge. Five of these witnesses were passengers on the interurban car and the other three were eye witnesses to the collision. It appears from the evidence that the track was perfectly straight from Hackers Greek Bridge to the said Beeghley Crossing.

The errors assigned and relied upon by defendants for reversal may now be considered.

The defendants, as stated, demurred to the declaration and to each count thereof and now insist it was error for the lower court to overrule said demurrer. This court is of the opinion th$t the demurrer should have been sustained as to the first count. Counsel for the plaintiff do not cite us authority, and from our own investigation we are unable to find where there is either a statutory of common law duty imposed upon an electric railway to provide and maintain gates, a flagman, watchman, gong or electric bell, at points where the tracks of the railway intersect and cross a public highway. There being no such duty imposed upon the company to provide them or either of them, it is manifest the failure of the Company to provide them would not be negligence. But assuming that the Company was negligent in this respect certainly it could not be contended that any such duty existed as to the defendant Musgrave, and in fact he is not charged in the declaration with neglig-ence in this respect, and we therefore think the count is faulty and the *316demurrer thereto should have been sustained. But the second count of the declaration is a good one and quite sufficient to support the verdict, and as the verdict is a general one, not based on any particular count, the existence of the faulty count, although the demurrer to it was improperly overruled, does not give grounds for reversal. At common law, if there was a general verdict for the plaintiff on a declaration containing several counts, one of which was faulty and entire damages were given it was deemed necessary to set the verdict aside, as the court could not tell upon which count the jury founded its verdict. But this rule of the common law has been changed by section 13 of chapter 131, Code, which follows: “When there aré several counts one of which is faulty, the defendant may ask the court to instruct the jury to disregard it; yet if entire damages be given, the verdict shall be good.” In the case of *Ray*v. *Chesapeake & Ohio Ry Co.,*57 W. Va. 333, this section of the Code above quoted was construed by Judge Bran-NON. It seems in this case, which was an action against' the railway company for negligently running over and killing Annie Bay, that the declaration consisted of four counts, and the defendant demurred to the declaration and to each count thereof. The trial court overruled the demurrer, and the company upon a writ of error assigned it as reversible error. Judge Brannon in his opinion at page 335 says: “If even I am wrong in saying that counts one and two are bad, as the third and fourth counts are good, the verdict being general, not on any particular count, the bad counts cannot reverse,” quoting the section above.

This Beeghley Crossing as described in the evidence is an extremely dangerous one, and there was at the time of the accident.in this ease a mutual duty upon the part of both the plaintiff and defendant to use ordinary care and caution in approaching the same. It was the duty of the plaintiff to look and to listen, and to look from a point from which he could see the .car of defendant for a sufficient distance from the crossing to insure his safety while attempting to cross. This duty he failed to perform. The point from which he first looked in the direction from which the car was com*317ing Ms view was obstructed, and be could see, as be says, for a distance of only 50 or 60 feet down tbe track in tbe direction from wbicb tbe car was approaching tbe crossing, and at that point be did not use any precautionary measures but continued to more in the direction of tbe crossing, and be further says that when he got within eight feet of tbe crossing be could have seen to Hacker’s Creek Bridge, a distance of 440 feet from the crossing', and it is evident tbe car was within that distance when be got to within eight feet of tbe crossing, and was in plain view bad be looked, and from tbe evidence he could have stopped bis car before be got on tbe track — at any rate he should have bad bis ear under control so that be could have stopped when be got to tbe point where be could have seen the approaching car. He was looking be says while he was listening; bis car was in second gear going up grade and. made some noise, now if that noise made by the automobile in any wav interfered with bis bearing tbe approaching car be should have stopped. We think from the evidence tbe plaintiff was guilty of negligence wbicb contributed to tbe injuries complained of:

On tbe other band we are of tbe opinion that tbe defendants were guilty of negligence in tbe manner in wbicb tbe car approached the crossing, considering this admittedly dangerous crossing. The defendant’s ear should have approached the crossing in such a manner as to be under tbe control of the motorman to such an extent, that if necessary, be could have stopped the ear before it reached tbe crossing. Tbe fact that tbe car was not under control, and was coming at a high rate of speed before and at tbe time it reached tbe crossing, is evidenced by tbe fact that after tbe motorman first saw tbe plaintiff’s automobile approaching tbe track, according to bis own testimony, be applied the emergency brakes and tbe interurban car was then 75 feet from the crossing and notwithstanding tbe brakes responded perfectly and be got the maximum result therefrom tbe motorman was unable to stop tbe car until it bad traveled a distance of 183 feet after the application of tbe brakes, this, we think, clearly shows that the car was not under such control as the circumstances of tbe ease required. Tbe motor*318man, Musgrave, says tbe car ran 65 feet beyond tbe point of collision stopping witb tbe rear end at tbe south end of tbe platform at Beeghley stop. He evidently meant that tbe rear end of tbe car was 65 feet from tbe point of collision. Tbe testimony shows that tbe interurban car was 48 feet long. We note by tbe measurements from the scale on tbe map in evidence that from tbe center of tbe crossing to the south end of tbe said platform it is approximately 60 feet, and adding tbe distance from tbe crossing where tbe motorman said be first applied tbe emergency brakes, and tbe length of the car, we have 183 feet which is tbe distance tbe interurban car traveled after tbe brakes were applied. So for tbe reasons above stated tbe defendants were negligent, but notwithstanding tbe negligence of tbe defendants tbe plaintiff for that reason cannot recover because of his contributory negligence.

The question as to whether or not tbe defendants were negligent in tba-t they did not sound a warning for tbe crossing may now be briefly disposed of. The plaintiff and bis brother, who was witb him at tbe time of tbe accident, as well as tbe other witnesses testifying in behalf of tbe plaintiff merely stated that if tbe whistle was blown they did not bear it. Not one of them stated positively that the whistle was not blown. Tbe motorman, tbe conductor and eight other witnesses, five of whom were passengers tbe others being eye witnesses to tbe accident, testified positively that tbe whistle was blown. We do not think this negative testimony is of sufficient probative value to make the question one for tbe jury. This same question arose in tbe case of *Cavendish*v. *Chesapeake and Ohio Ry. Co.,*95 W. Va. 490, 122 S. E. 498, point one of tbe syllabus is here quoted:

> “The fact that witnesses have heard signals given by a locomotive approaching a crossing, warning travelers of danger, is not necessarily in conflict witb the evidence of other witnesses who did not bear them; for the observation of the fact by those who beard is consistent with the failure of the others to hear them.”

*319So from all the facts and circumstances of this case, we apprehend that we may safely say that the signals required by law to be given were given, and the defendants were not negligent in this respect as charged in the declaration.

The defendants assign as error the courts refusal to submit to the .iury certain interrogatories requested by them. These interrogatories are here set out:

> (1) Did the plaintiff before starting across Beegh-ley Crossing look up the railroad track for the car coming southward from Jane Lew. If he did how far was he from the crossing when he first looked?

> (2) Could the plaintiff hear the oncoming ear while driving his automobile in second gear up the grade crossing?

> (3) Did the motorman, Musgrave, blow the car whistle while approaching the crossing?

> (4) At what speed did the interurban ear approach the crossing ?

> (5) Could the motorman have avoided the collision after he discovered the plaintiff upon or approaching the track?

From a review of the case which declare the purpose of the statute which permits the submission of special interrogatories to the jury, it would seem that its object is to single out one or more of the controlling facts so that the existence or non-existence of this controlling fact or facts upon which the issue turns may be carefully and especially considered by the jury. Its purpose is to assist the jury in arriving at a correct verdict, and this being so, any interrogatory which fails to raise a material issue, and which would not be decisive of and control any verdict the jury rnig-ht render only tends to confuse and make more obscure the real issues, and the trial court should refuse to submit any such interrogatory. We think the trial court properly exercised its discretion in refusing to submit the interrogatories asked for by the defendants, as any answer to either of them would not necessarily control the verdict, and so if the jury had answered all of them either in the affirmative or negative, *320the answers would have been consistent with their verdict and therefore not decisive of the case.

The last point made by the defendants concerns the matter of the instructions. It is insisted by them that the trial court erred in giving* plaintiff’s instructions 2, 3, and 2nd alternative for 1. Defendants contend that this is not a proper case for the application of the doctrine of last clear chance, and the court therefore erred in giving plaintiff’s instructions No. 2. The reason assigned is that the evidence shows the motorman could not possibly have avoided the accident, by stopping the car, after he became aware of the plaintiff’s perilous position. The motorman, Musgrave, did testify that he applied the emergency brake immediately upon seeing the plaintiff but was unable to stop the car, so there was evidence to support the defendant’s contention. However, Mr. McIntyre, a witness for the plaintiff testified that the application of the brakes and the crash came at the same time, thus tending to show that the motorman made no effort to stop the car until the collision occurred. While it may oe true that it was impossible for the motorman to bring the car to a complete stop before the crossing was reached, yet we believe the jury would have been justified in coming to the conclusion that if the motorman had immediately applied the brakes upon discovering the plaintiff, the speed of the car could have been reduced sufficiently to allow the plaintiff ample time to clear the track. This question was purely one of fact for the jury, and as there was evidence upon which to base the instruction we feel the court was justified in giving it.

Plaintiff’s 2nd alternative for No. 1 is here set out:

> ‘ ‘ The court instructs the jury that it was the duty of the defendant to sound a warning sufficient, and at a proper place, and to continue to sound a warning for a time sufficient, the deep cuts considered, to give due notice to the plaintiff of . the approach of the car which collided with plaintiff’s automobile before the highway was reached, and if you believe from the evidence defendants neglected this duty, and that the plaintiff was injured and *321damaged by reason of such neglect, then you should find for the plaintiff such damages as he has sustained. ’ ’

The court is of the opinion that this instruction' is erroneous and constitutes grounds for reversal of the case. There is a long line of West Virginia cases which are de-disive of this point. The substance of these decisions is this: that where the defendants rely tupon contributory negligence as a defense, a hypothetical instruction directing, a verdict for the plaintiff which entirely ignores the defense of contributory negligence is fatally defective. This is so because it excludes from the consideration of the jury the very defense relied upon by the defendants, and it seems the error is fatal although there are other instructions covering the same point. The case of *McCreery’s Adm’x v. Ohio River Ry. Co.,*43 W. Va. 110, is a leading case on this point. The syllabus of this case is here quoted:

> “When the defense of contributory negligence is relied upon in defense of an action for wrongful injury or death, a hypothetical instruction directing a finding in favor of the plaintiff, which omits any reference to the facts'tending to establish contributory negligence, and entirely ignores such defense, is erroneous. Nor ca¡n such error be cured by other instructions given in behalf of either party.”

The following cases are also in accord with the doctrine just enunciated: *Wooddell*v. *Improvement Co.,*38 W. Va. 23; *Culp*v. *Virginian Ry.,*77 W. Va. 125; *Petry*v. *Coal Co.,*77 W. Va. 654; *Stuck*v. *Ry. Co.,*78 W. Va. 490; *Penix*v. *Grafton,*86 W. Va. 278; *Evans*v. *Kirson,*88 W. Va. 343; *Ewing*v. *Chapman,*91 W. Va. 641; *Blackwood*v. *Monongahela Valley Traction Co.,*96 W. Va. 1.

Defendants insist the court's refusal to give their instructions Nos. 6 and 9 was error.

Defendant’s instruction No. 6 is a binding instruction and is predicated on the negligent failure of the defendants to give the signals required by law, and tells the jury that *322“Unless they believe from the evidence that the defendants negligently failed to blow the signal for Beeghley Crossing, and that such negligence was the direct and proximate canse of the accident, and the injuries claimed by the plaintiff then the jury should find for the defendant. ’ ’ This instruction excludes from the jury the two theories of the plaintiff; that the car was being run at an excessive rate of speed at the time of the collision, and the theory of the last clear chance. In other words it places undue emphasis upon the one act of ‘negligence and fails to embody the other causes for recovery, there being appreciable evidence to support each of them.

> “A binding instruction is properly rejected which excludes the theory of one of the parties, and which the evidence tends in an appreciable degree to support.” Par*kersburg & Marietta, Land Co.*v. *Smith,*76 W. Va. 246.

Instruction No. 9, offered by the defendant, was properly refused by the court. While we think the instruction embodies the law of the ease, yet we feel the principles envolved therein are sufficiently covered by plaintiff’s instruction No. 2.

> “It is not error to refuse instructions when the propositions of law embodied therein, though correct, are sufficiently covered by other instructions which have been given.” *Richmond Traction Co.*v. *Williams,*102 Va. 253.

For the reason above pointed out the judgment of the circuit court complained of will be reversed, the verdict of the jury set aside, and the case remanded for a new trial.

*Reversed, verdict set aside; remanded.*