Kenna, Judge :
This writ of error was granted to the second judgment of the Circuit Court of Wayne County in an action of death by wrongful act brought by Henry A. Gilkerson, administrator of the estate of Virgil Ray Gilkerson, deceased, against Baltimore & Ohio Railroad Company, C. J. Williams and E. B. Van Lear, the defendants below having been the plaintiffs in error in the former submission to this Court. The opinion in the former review stating the reasons for reversing the first judgment of the court below will be found by referring to
Gilkerson v. Baltimore & Ohio Railroad Company,
129 W.Va. 649, 41 S.E. 2d 188. The defendants below are the plaintiffs in error now.
The assignments of error, including subdivisions, are twelve in number, but upon their examination we have concluded that only four present questions not dealt with and decided upon the former record, counsel being agreed that with the exception of the witnesses Frank Smith, Jr., and Lory B. Hatten, whose testimony will be discussed hereafter, the evidence now before the Court is substantially the same as in the first trial. Therefore, the scope of this review is limited by the generally recognized principle known as “the law of the case”, for a general discussion of which under like circum
stances see
Baltimore & Ohio Railroad Company v. Deneen,
167 F. 2d 799.
On the night of Friday, January 7, 1944, plaintiff’s decedent and six other young men who lived in Wayne County, returned from Catlettsburg, Kentucky where they had been attending basket-ball games, in an automobile driven and owned by Orville Hall. 'On their way back they stopped at Ceredo and, not finding the food they wished, continued to travel east on U. S. Route No. 60 toward their home with the plan of stopping at a place called “Maple Grove Inn” for sandwiches.
The road on which they were driving east or up the Ohio River was U. S. Route 60, locally called Piedmont Road, and was on the south or hill side of the Baltimore & Ohio Railroad tracks. Maple Grove Inn is on the north or river side of the railroad company’s tracks. In going there the car in which the plaintiff’s decedent was riding had to make a right angle turn to its left, • go north and cross the tracks of the B. & 0. Railroad Company on Burlington Road. Burlington Road is made of concrete twenty feet wide and is frequently used both night and day.
At Maple Grove Inn the young men were confronted by a cover charge which they did not wish to pay so that a few minutes after eleven o’clock they started back toward U. S. Route 60 or Piedmont Road, traveling south or toward the hill on Burlington Road and intending to cross the tracks of the Baltimore & Ohio Railroad Company in order to reach the main highway. As they were crossing those tracks their automobile was struck by an eastbound Baltimore & Ohio passenger train traveling on schedule. For a full general statement of facts see this Court’s former opinion.
The plaintiffs in error, defendants below, complain because the trial judge declined to give their instruction No. 1-A which would have directed the jury to find for
the defendants on counts 1, 2 and 3 of the plaintiif’s declaration. Although similar questions are usually raised by motion, of course they can be reached by instruction. However, assuming that there was insufficient evidence to support a verdict if based upon any of the counts under attack, the case was submitted to the jury under the remaining four counts of the declaration, three of which this 'Court has held good at the former hearing so that the verdict for the plaintiff is fully supported by an adequate pleading. Therefore, we do not see a way in which the defendants could have been prejudiced by the refusal of the instruction. A kindred question arising upon demurrer was discussed in our former opinion in this case. Furthermore, to instruct a jury to return a verdict for the defendants on three. counts, when a general verdict for plaintiff is a possibility, instead of merely directing the jury to disregard the counts in question, we believe would have had a tendency to result in confusion. We are of opinion that the trial court committed no prejudicial error in declining the instruction.
Another assignment of error not covered in the former review is the refusal of the trial court to submit to the jury four special interrogatories submitted by the defendants. The interrogatories have been carefully examined and although their length makes a detailed discussion out of proportion to their importance, we are of the opinion that no one of them could perforce affect the jury’s verdict and consequently their refusal by the trial court was not error.
Bartlett v. Mitchell,
113 W.Va. 465, 168 S. E. 662.
Counsel for the defendants contend that it was error to refuse the admission of the entire transcript of the testimony to Frank Smith, Jr., and Lory B. Hatten at the former trial due to a stipulation thereafter entered into between counsel for the plaintiff and the defendants, the material wording of which is as follows:
“In order to save the cost of taking depositions to perpetuate the testimony of any one or all of the witnesses who testified in the aforementioned suit, it is agreed that either party to each of the above captioned cases may use the testimony of any witness given m tne case oi Henry A. Gilkerson, Administrator of the estate of Virgil Ray Gilkerson, deceased, in the subsequent trial of said case, or in the trial of any one or all of the above captioned cases.”
Smith and Hatten were the only available survivors of the accident. Four were killed and Frank MoComas was in the United States Army at the1 time of trial. In its former opinion this Court had this to say concerning the testimony of these witnesses:
“The evidence of the two survivors of this sad and terrible tragedy who testified at the trial, Frank Smith, Jr., and Lory B. Hatten, is that the occupants of the automobile, including Virgil Ray Gilkerson, as it approached the fatal crossing, were looking straight ahead.”
As we understand, the principal purpose of offering the transcripts was to contradict the testimony of Smith at this trial, and to introduce the testimony of Hatten, who did not testify in this trial, in the former trial to support that contradiction.
At the former trial on his examination in chief Smith had this to say concerning the direction in which the other passengers of the car were looking immediately before the collision:
(The references are to the pages of the printed record upon the former review of the case in this Court.)
“Q. Do you know in what direction Hall was looking as he approached the crossing?
“Col. Wallace: Objection. This man was sitting in the back seat.
“The Court: Do you know in what direction he was looking?
“A. I am pretty sure he was looking right straight ahead.
“Objection overruled; exception.
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Kenna, Judge :
This writ of error was granted to the second judgment of the Circuit Court of Wayne County in an action of death by wrongful act brought by Henry A. Gilkerson, administrator of the estate of Virgil Ray Gilkerson, deceased, against Baltimore & Ohio Railroad Company, C. J. Williams and E. B. Van Lear, the defendants below having been the plaintiffs in error in the former submission to this Court. The opinion in the former review stating the reasons for reversing the first judgment of the court below will be found by referring to
Gilkerson v. Baltimore & Ohio Railroad Company,
129 W.Va. 649, 41 S.E. 2d 188. The defendants below are the plaintiffs in error now.
The assignments of error, including subdivisions, are twelve in number, but upon their examination we have concluded that only four present questions not dealt with and decided upon the former record, counsel being agreed that with the exception of the witnesses Frank Smith, Jr., and Lory B. Hatten, whose testimony will be discussed hereafter, the evidence now before the Court is substantially the same as in the first trial. Therefore, the scope of this review is limited by the generally recognized principle known as “the law of the case”, for a general discussion of which under like circum
stances see
Baltimore & Ohio Railroad Company v. Deneen,
167 F. 2d 799.
On the night of Friday, January 7, 1944, plaintiff’s decedent and six other young men who lived in Wayne County, returned from Catlettsburg, Kentucky where they had been attending basket-ball games, in an automobile driven and owned by Orville Hall. 'On their way back they stopped at Ceredo and, not finding the food they wished, continued to travel east on U. S. Route No. 60 toward their home with the plan of stopping at a place called “Maple Grove Inn” for sandwiches.
The road on which they were driving east or up the Ohio River was U. S. Route 60, locally called Piedmont Road, and was on the south or hill side of the Baltimore & Ohio Railroad tracks. Maple Grove Inn is on the north or river side of the railroad company’s tracks. In going there the car in which the plaintiff’s decedent was riding had to make a right angle turn to its left, • go north and cross the tracks of the B. & 0. Railroad Company on Burlington Road. Burlington Road is made of concrete twenty feet wide and is frequently used both night and day.
At Maple Grove Inn the young men were confronted by a cover charge which they did not wish to pay so that a few minutes after eleven o’clock they started back toward U. S. Route 60 or Piedmont Road, traveling south or toward the hill on Burlington Road and intending to cross the tracks of the Baltimore & Ohio Railroad Company in order to reach the main highway. As they were crossing those tracks their automobile was struck by an eastbound Baltimore & Ohio passenger train traveling on schedule. For a full general statement of facts see this Court’s former opinion.
The plaintiffs in error, defendants below, complain because the trial judge declined to give their instruction No. 1-A which would have directed the jury to find for
the defendants on counts 1, 2 and 3 of the plaintiif’s declaration. Although similar questions are usually raised by motion, of course they can be reached by instruction. However, assuming that there was insufficient evidence to support a verdict if based upon any of the counts under attack, the case was submitted to the jury under the remaining four counts of the declaration, three of which this 'Court has held good at the former hearing so that the verdict for the plaintiff is fully supported by an adequate pleading. Therefore, we do not see a way in which the defendants could have been prejudiced by the refusal of the instruction. A kindred question arising upon demurrer was discussed in our former opinion in this case. Furthermore, to instruct a jury to return a verdict for the defendants on three. counts, when a general verdict for plaintiff is a possibility, instead of merely directing the jury to disregard the counts in question, we believe would have had a tendency to result in confusion. We are of opinion that the trial court committed no prejudicial error in declining the instruction.
Another assignment of error not covered in the former review is the refusal of the trial court to submit to the jury four special interrogatories submitted by the defendants. The interrogatories have been carefully examined and although their length makes a detailed discussion out of proportion to their importance, we are of the opinion that no one of them could perforce affect the jury’s verdict and consequently their refusal by the trial court was not error.
Bartlett v. Mitchell,
113 W.Va. 465, 168 S. E. 662.
Counsel for the defendants contend that it was error to refuse the admission of the entire transcript of the testimony to Frank Smith, Jr., and Lory B. Hatten at the former trial due to a stipulation thereafter entered into between counsel for the plaintiff and the defendants, the material wording of which is as follows:
“In order to save the cost of taking depositions to perpetuate the testimony of any one or all of the witnesses who testified in the aforementioned suit, it is agreed that either party to each of the above captioned cases may use the testimony of any witness given m tne case oi Henry A. Gilkerson, Administrator of the estate of Virgil Ray Gilkerson, deceased, in the subsequent trial of said case, or in the trial of any one or all of the above captioned cases.”
Smith and Hatten were the only available survivors of the accident. Four were killed and Frank MoComas was in the United States Army at the1 time of trial. In its former opinion this Court had this to say concerning the testimony of these witnesses:
“The evidence of the two survivors of this sad and terrible tragedy who testified at the trial, Frank Smith, Jr., and Lory B. Hatten, is that the occupants of the automobile, including Virgil Ray Gilkerson, as it approached the fatal crossing, were looking straight ahead.”
As we understand, the principal purpose of offering the transcripts was to contradict the testimony of Smith at this trial, and to introduce the testimony of Hatten, who did not testify in this trial, in the former trial to support that contradiction.
At the former trial on his examination in chief Smith had this to say concerning the direction in which the other passengers of the car were looking immediately before the collision:
(The references are to the pages of the printed record upon the former review of the case in this Court.)
“Q. Do you know in what direction Hall was looking as he approached the crossing?
“Col. Wallace: Objection. This man was sitting in the back seat.
“The Court: Do you know in what direction he was looking?
“A. I am pretty sure he was looking right straight ahead.
“Objection overruled; exception.
“By Mr. Lilly:
“Q. In what direction were you looking?
“A. Straight ahead, myself.
“Q. Do you know about the other people in the car as to what direction they were looking?
“A. No, sir, I do not.”
(Page 179 of the former printed record)
His last answer, of course, included Virgil Ray Gil-kerson and is exactly the same as his present testimony.
On cross-examination he said this:
“Q. What was Virgil Gilkerson doing?
“A. As
far as I know
he was sitting there looking straight ahead. (Italics supplied.)
“Q. Were you in a position to see what he did and hear what he said, everything he said?
“A. I didn’t hear it if he said anything.
“Q. Did you hear him say anything?
“A. No, sir.
“Q. You didn’t see him do anything but look ahead?
“A. I saw him looking ahead.”
(Pages 184, 185 of the former printed record)
In his examination in chief Hatten had this to say:
“Q. Do you know in which direction the occupants were looking as you approached the crossing at the time the car was struck by the train ?
“A. As far as I know they were looking straight ahead.”
(Page 190 of the former printed record)
On cross-examination he replied to a question as follows :
“Q. In what direction was Virgil Ray Gilkerson looking?
“A. Forward.”
(Page 194 of the former printed record)
The foregoing is all that these witnesses testified concerning the direction in which Virgil Ray Gilkerson was looking immediately before the accident. ■
Hatten was summoned by the plaintiff and was present in the court room during. the trial and available as a witness to. either side. He was not called. Smith was present and was placed upon the stand by the plaintiff and subjected to cross-examination by the defendants’ counsel, using the transcript of his former testimony continually as an effort to show contradiction, the credibility of course being for the jury. It is of course to be remembered that the time was about eleven-twenty on a dark night and that these two witnesses, each seventeen years of age, were being questioned concerning the exact physical position of six other passengers a few seconds before the car was wrecked, killing four of its
occupants. Smith was looking “straight ahead,” making it impossible for him to have known in what direction plaintiff’s decedent was looking because decedent was seated diagonally behind him. That is the background for such confusion as exists in their statements.
Trial courts look favorably upon stipulations the effect of which is generally to simplify litigation. For this reason they are not generally construed rigidly but are looked upon in order to carry out their actual purpose. For this reason where a stipulation appears to have been inadvertently or under a misapprehension entered into courts occasionally relieve the parties concerned from their effect.
Cole v. State Compensation Commissioner,
114 W.Va. 633, 173 S. E. 263. See also 50 Am. Jur. 609, 612, 613, and Ann. Cas. 1912 C 769. The stipulation confronting the court in this matter states its purpose quite plainly. It was made: “In order to save the cost of taking depositions to perpetuate the testimony of any one or all of the witnesses who testified in the aforementioned suit, *** The perpetuation 'of the testimony of available witnesses, particularly witnesses actually present in the court room during the trial of a case, as here, is entirely unnecessary. Consequently in carrying out the stated purpose of the stipulation we do not believe that counsel had the unlimited right to introduce the transcript of the testimony at the former trial. Furthermore, we are of the opinion that a stipulation entered into between counsel which materially affects the conduct of litigation, the relevancy 'of testimony, the number of witnesses used, and the time to be consumed in trying the matter, are entered into subject to the consent of the judge of the court involved. Certainly counsel could not stipulate, for example, that a quantity of hearsay could be admitted in opposition to the trial judge’s attitude. For the reasons stated we see no error in the holding of the Circuit Court of Wayne County on this assignment of error.
The remaining assignment of error that we think was not considered in the former review of this case has to do with improper comment made by counsel for the plaintiff in the closing argument. The comments had to do with the testimony of the employees of the railroad company and were to the effect that it was to be expected that they would testify in the interests of the defendant in order to hold their positions and their rights of seniority. The comments were objected to by counsel for the defendant and the obj ection was sustained. There was no suggestion by counsel for defendant that counsel be admonished nor the jury cautioned to disregard the comments of counsel and neither took place. Counsel fox-plaintiff in error now takes the position that the failure to admonish pursuant to his sustained objection only, was error. While we entirely disapprove of comments of this nature, particularly when made by experienced counsel, we cannot say that it is prejudicial error for a trial judge not to voluntarily admonish the 'offending lawyer particularly when the question arises upon an objection of counsel not accompanied by a suggestion of an admonition, For a trial judge to voluntarily elaborate or enlarge the effect of a sustained objection could very easily be looked upon as unduly favoring the side objecting. Sustaining the objection showed plainly that as a matter of law he regarded the statements of counsel as improper. To voluntarily go beyond that in our opinion is subject to the sound discretion of the trial court and in this instance we see no abuse of that discretion.
Being of the opinion that there is no prejudicial error covered by the assignments upon this review, the judgment of the Circuit Court of Wayne County is affirmed.
Affirmed.