De Board v. Camden Interstate Ry. Co

been taken before the awarding of the writ of error, the plaintiff would not be bound to accept it, nor would it preclude him from insisting upon the error committed in the setting aside of the former verdict. In Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. 880, a verdict was set aside, and the new trial awarded had been had, resulting in a verdict, contrary to the one obtained on the first trial, and the case was then brought to this court on a writ of error to the final judgment, as well as to the order setting aside the first verdict; and this court, perceiving error in the action of the court below in setting aside the first verdict, reversed both judgments, and rendered a judgment on the first verdict. The same action occurred in Davis v. Telephone Co., 53 W. Va. 616, 45 S. E. 926. For the position that the plaintiff was not bound to wait for a final judgment, in taking his writ of error, the statute referred to in the statement of the case is express and indisputable authority.

While the judgment is not before this court for review, and therefore cannot be vacated or reversed here, it discloses to us that the reversal of the order, setting aside the first verdict, will, when the mandate of this court goes down, establish in the court below error in said judgment, if not, indeed, want of jurisdiction in that court to try the case and render judgment, at the time at which it did so. Seeing this, in order to avoid the anomaly and injury of two judgments for the same cause of action, we should reverse the order complained of, thereby reinstating the verdict set aside by it, and remand the case to the circuit court for the rendition of judgment thereon. Then, under its power of restitution and correction of its own errors, it may be able to vacate the judgment, set aside the second verdict, and render judgment on the first. Though the record upon which a judgment or decree, brought into this court on a writ of error or appeal, cannot be amended or altered as to matter upon which it is based, and original jurisdiction cannot be conferred upon this court, as to matters not acted upon in the courtt below, by amendments made here, this court may be governed in its action by subsequent proceedings of the court below, brought to its attention. If, pending an appeal, the parties, by consent and agreement, cause such further proceedings to be had in the court below as to dispose of the whole subject of controversy, this court is thereby deprived of its jurisdiction, and will dismiss the appeal. Baker v. Tappan, 56 W. Va. 349, 49 S. E. 447. As we can ascertain, from subsequent orders of the lower court, conduct of the parties which deprives this court of its jurisdiction, it seems to follow that we can consider such an order so far as to sustain our refusal, to a party who has taken one judgment for the same cause of action. The order complained of will therefore be reversed and set aside, and the case remanded for the rendition of judgment on the verdict found on the 24th day of January, 1906.

WILLIAMS V. LOUISVILLE & N. R. Co.

(Supreme Court of Alabama, April 11, 1907.)

[43 So. Rep. 576.]

Carriers Care of Passengers under Disability.-*A carrier, knowingly accepting as a passenger a person physically unable to take care of herself, must render to her such special assistance as her condition requires, so that she may be safely transported.

Same-Actions Complaint-Sufficiency.-A complaint in an action against a carrier which alleges that plaintiff was at a station to be carried as a passenger; that she was weak and hardly able to walk; that the train, on reaching the station, stopped to take on passengers; and that the carrier, through its servants, accepted her as a passenger and transported her to her destination, and received her fare, and through its servants proceeded to assist her to board the train, but performed the service negligently, causing injury to her-shows, as against a demurrer, that plaintiff at the time of the injuries had been accepted as a passenger, that the servants knew of her physical condition, and that they acted within the scope of their authority, and states a cause of action.

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Action by Cora Williams against the Louisville & Nashville Railroad Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Brown & Leeper, for appellant.

Whitson & Harrison and E. H. Dryer, for appellee.

TYSON, C. J. Appellant's counsel do not seriously insist that the trial court was in error in sustaining the demurrer to the first, second, and third counts of the complaint; but they do insist that the sustaining of the demurrer to the fourth was erroneous. That count alleges that plaintiff was at one of the stations on defendant's road for the purpose of being carried as a passenger; that she was just recovering from a severe spell of sickness, on account of which she was very weak and hardly able to walk; that when the passenger train of defendant reached the station "it was stopped for the purpose of taking on and putting off passengers, and that defendant then and there, through its agents and servants, accepted plaintiff as a passenger and transported her as such on said train from said station to her destination, and received her fare and pay for the same, but that defendant through its agents or servants undertook and proceeded to assist plaintiff to board said.

*For the authorities in this series on the subject of the duties and liabilities of the carrier as affected by the infirmity or helpless condition of the passenger, see foot-notes appended to Illinois Cent. R. Co. v. Cruse (Ky.), 21 R. R. R. 145, 44 Am. & Eng. R. Cas., N. S., 145.

Williams v. Louisville & N. R. Co

train, by lifting her up the steps of a passenger coach of said train, but performed said service carelessly and negligently; that she was caused to fall or be violently thrown from said steps to the ground, thereby causing her great injury," etc. While a carrier is under no duty to accept as a passenger a person who is physically unable to take care of herself unattended by a care taker, yet if such a person, without an attendant, is accepted by the carrier as a passenger, and his disability is apparent or made known at the time of his application for carriage to the servants of the carrier, it becomes the duty of the carrier, to render to such person such special care and assistance as his condition may require in order that he may be safely transported. 6 Cyc. p. 599; 5 Am. & Eng. Ency. Law (2d Ed.) —; 2 Hutchinson on Carriers (3d Ed.) § 992. But, "whether bound to assist a passenger or not, a carrier is always liable for negligence in so doing." 2 Sher. & Red. on Negligence (5th Ed.) p. 929, § 510.

But it is insisted that the count fails to show that plaintiff had been accepted as a passenger prior to receiving her injuries. We do not so read it, and do not think its language is fairly susceptible of any such construction. To the contrary, the averment shows clearly and unequivocally that she was accepted as a passenger before attempting to board the train. It is of no consequence that she had not purchased a ticket or paid her fare at that time. Whether the court sufficiently shows that the agents or servants had knowledge of plaintiff's physical condition is not raised by the demurrer. Their knowledge of it may certainly be fairly inferred from the facts averred; so, then, it cannot be said that the count fails to state a cause of action.

There is clearly no merit in the contention that the count is subject to that ground of the demurrer that no facts are averred which show that defendant's servants or agents were acting within the scope of their authority or in the line of their duty.

The action of the court in sustaining the demurrer to the count under consideration was erroneous.

Reversed and remanded.

DOWDELL, ANDERSON, and MCCLELLAN, JJ., concur.

CINCINNATI, HAMILTON, & DAYTON RAILWAY COMPANY et al., Appts., v. INTERSTATE COMMERCE COMMISSION.

(Argued January 31, February 1, 1907. Decided May 13, 1907.) [27 Sup. Ct. Rep. 648.]

Interstate

Interstate Commerce Commission-Powers.-The Commerce Commission, in making an investigation of a complaint filed by soap manufacturers as to the freight rate for common soap promulgated in a classification adopted to govern in official classification territory, had the power, in the public interest, unembarrassed by any supposed admissions contained in the complaint, to consider the whole subject, and the operation of the classification in the entire territory, and also how far its going into effect would be just and reasonable, would create preferences, or would engender discrimination.

Interstate Commerce Commission-Judicial Enforcement of Order. -Any supposed admissions in a complaint filed by soap manufacturers with the Interstate Commerce Commission as to the freight rate for common soap promulgated in a classification adopted to govern in official classification territory are ineffectual to deprive a Federal circuit court, in a proceeding to enforce an order of the Commission directing the carriers to desist from enforcing this classification as to soap in less than car-load lots, of the power to test the validity of such order by the scope of the act to regulate

commerce.

Carriers Rates-Classification. The disturbance in the relations between freight rates for soap in car-load and less than car-load lots created by advancing the former from class to class 5, and the latter from class 4 to class 3 in a new classification adopted to govern in official classification territory, was not cured by classifying soap in less than car-load lots at 20 per cent. less than third class, but not less than fourth class, where the result of applying this modified percentage classification to the varying rates is to leave soap in less than car-load lots in the fourth class in portions of the territory and in a higher class in other portions.

Appeal Review of Facts.-Findings of the Interstate Commerce Commission that a classification of freight rates adopted to govern in official classification territory produces preferences and discriminations will not be interfered with on appeal when concurred in by a Federal circuit court unless the record establishes that clear and unmistakable error has been committed.

Carriers Rates - Classification - Preferences.-Unlawful preferences and discriminations are created by fixing the freight rate for common soap in less than car-load lots in a new classification adopted to govern in official classification territory at 20 per cent. less than third class, but not less than fourth class, at which that commodity had previously been rated, where the result of applying this classification to the varying rates is to leave soap in less than car-load lots

Cincinnati, etc., Ry. Co. v. Interstate Com. Commis'n

in the fourth class to a considerable extent in one of the subdivisions of such classification territory, and in a higher class in the other subdivision.

Interstate Commerce Commission-Powers.-The Interstate Commerce Commission is acting within its powers under the act to regulate commerce in ordering carriers to desist from further enforcing a classification by percentage of common soap in less than car-load lots, operating throughout official classification territory, which it finds has brought about a general disturbance in relations previously existing in that territory, and has created discriminations and preierences among manufacturers and shippers of the commodity, and between localities in such territory.

Appeal from the Circuit Court of the United States for the Southern District of Ohio to reveiw a decree enforcing an order of the Interstate Commerce Commission directing carriers to cease and desist from further charging the freight rate for common soap in less than car-load lots promulgated in a classification adopted to govern in official classification territory. Affirmed.

See same case below, 146 Fed. 559.
The facts are stated in the opinion.

Messrs. Edzard Colston and Lawrence Maxwell, Jr., for appellants.

Messrs. L. A. Shaver and P. J. Farrell, for appellee.

MR. JUSTICE WHITE delivered the opinion of the court:

Official classification territory embraces that portion of the United States lying between Canada on the north, the Atlantic ocean on the east, the Potomac and Ohio rivers on the south, and the Mississippi river on the west. This territory includes what is known as Central Freight Association territory and Trunk Line territory, both being governed by official classification. The Central Freight Association territory comprises the area west of Pittsburg and Buffalo, including the lower peninsular of Michigan. and east of a line from Chicago to St. Louis, the Mississippi river from St. Louis to Cairo, and north of the Ohio river. Trunk Line territory lies north of the Potomac river and east of Pittsburg and Buffalo. Whilst official classification governed throughout the whole of official classification territory, the rates throughout the whole of the official classification territory were not uniform, because of a difference of rates prevailing in the subdivision; that is, in the Central Freight and Trunk Line territory. Thus, although on shipments from points in the Central Freight Association territory to points in the Trunk Line territory or vice versa rates were the same for similar distances, yet, on shipments between termini wholly within one or the other of these territories, the rates varied because of the different rules governing rates which prevailed as to traffic exclusively moving in that particular territory.

The first classification adopted by the railroads to control in the