Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-12-02
Was Broken, But 1t Would Not Have
Been Broken, Had he
KEPT IT INSIDE THECAR WINDOW,
Hence the Decision Of the Court That Gave
Him Damages Has Been Reversed by
the Supreme Court and the Case
Rsmanded---An Interest
ing Legal Decision.
Special Tslsoran to tAe RegItsr.

lining to what extent tney are llaDle lor
injuries done to passengers, has been
made by the Supreme Coura OF Appeals.
The case before the Court was that OF
Carrico VS.. the West Virginia Central
& Pittsburg Railroad Company, from
Tucker county.
Carrico had been passenger on q
train on the West Virginia Central 4
Pittsburg, and while he was on the car
the edge of it scraped pile OF rocks
along the side OF the track and his arm
was broken. Though the Company
proved in Court that his arm must have
been protruding at the time as the edge
Of the car was not scraped at the place
where Carrico was sitting, the Circuit
Court awarded him Sl2, 900 damages.
This Judgment Of the Court the Supreme
Court reverses, and sends the case back
for new trial. The syllabus Of Judge
Lucas opinion Is as follows:
"In his declaration againsta corpora
tion for injury as the result OF negli-
gence, the plaintiff need not aver that
he was not guilty Of contributory negli-
gence, that being a matter OF defense,
to be alleged or.proved, If 1t exist,by the
defendant.
"After the defendant has given In his
own evidence, a motion TO strike out all
the evidence on the ground that Ii Is
insufficient to sustain the issue on the
part of the plaintiff should not be
granted.
"a motion by the defendant to ex-
IL. =. ufA
ground that II is not sufficient TO war
rant a verdict In his favor, will not be
granted, II there be any evidence which
tends in any degree, however slight, to
prove the plaintiffs case. If 1t tend TO
prove the plaintiffs case In any degree
whatever, the case cannot be withdrawn
from the jury. The motion can never
prevail or be sustained merely because
the Court may think the weight OF evil
dence is against the plaintiff.
SIN cases where the common ex-
perience of mankind and the common
consensus OF prudent persons have rec
ognized that to do or omit TO do certain
acts is prolific OF, danger, we may call
the doing or omission OF them negli-
gence, per Sc, or legal negligence. The
omission OF duty enjoined by law for
the protection and safety Of the public
by common carrier, or the doing OF an
act by such a carrier, which by the
common experience aud consensus OF
prudent persons would create danger 10
passengers, is legal negligence.
1t is legal negligence for a passenger
to ride in a fast-goinf passenger coach
with his arm prot. .uding ont OF the
window and beyond the line of the
BODY of the car.
"It is the absolute. duty Of railroad
company to keep its track free from
dangerous distractions OF every sort,
and when passenger is injured by rea-
son of any such obstruction along the
line of its road, the burden devolyes
upon it to prove that the accident was
the result OF the plaintiffs own negll-
gence, or that the most thorough and
perfect diligence could not have fore
seen and prevented the injury. Neither
can the company relieve itself from LA
bilty In regard TO the condition and
construction of the road by undertaking
TO coniide these duties which IL owes
TO passengers to other hands.
"The general rule in regard to con-
tributory negligence is, that II negli-
gence be mutual, on the part OF the
plaintiff and the defendant, there can
not be recovery. But II the injury
would have happened just the same, al
though the plaintiff had been In no
wise negligent, his negligence will not
prevent his recovery; or IL the defend
ent after he has discovered the dan
gerous exposure. refuses or neglects TO
practice any care or precaution TO pre-
vent the injury, he will be held liable.
"When a party is confessedly guilty
OF legal negligence or when 1t Is proved
by the evidence, the burden deyolyes
upon him to bring himself within some
recognized exception to the legal pre-
sumption.
"As between the company and a
passenger or a stranger, contribatory
negligence on the part OF the plaintiff
renders the defendant liable only for
gross, or wanton, or wilfUl neglect,
where otherwise he would be held la
BILE for ordinary negligence. While
this is the general principle, IL Is neces-
sary TO observe that IN the traEsporta-
ton OF its passengers railroad company y
Is bound to exercise more than ordinary
care and diligence, and Is liable for the
slightest negligence against which pru'
dence and foresight could have guarded,
and it is held to the utmost care In the
removal of distractions, repair oil
bridges and switches, and all other
matters properly pertaining 70 the condi.
tion and safety OF its track. Consequent.
ly, the degree of care exacted from the
company 10 a passenger Is greater than
that 70 be exercised In respect to q
stranger or tresspasser. Hence, there
are cases where contributory negligence
on the part of stranger or tresspass.
er would entirely defeat q recovery. un.
less gross or wsnton negligence were
brought home to the defendent; but had
such person stood in the relation OF q
passenger, HIS contributory negligence
would not relieve the company OF ths
duty TO exercise that extreme care ordI.
narily exacted, but would still leave Il
liable for the failure TO use ordinary
precautions for the safety Of such pas
senger after his danger has been dis
covered or brought TO Its notice, IL by III
use the injury could have been avoided
ITO rest the arm upon the window
sill of q car. provided IL does not pro
trude, is not negligence per Sc; but II 4
does protrude, the accident becomes
negligence In the contemplation OF law
"Where an instruction Is ambiguou
and equivocal and would not readily b
compromised by the average jurynan
| the Court should not refuse 70 grant Il