43 W. Va. 11 | W. Va. | 1896
This was an action of trespass on the case, brought by J. M. Berkely against the Oheasa.peake & Ohio Railway Company, a corporation, in the Oircuit Court of Cabell county, on the. 80th day of August, 1898, to recover damages for an injury alleged to have been inflicted upon the plaintiff while crossing the track of said railroad in the city of Huntington, on Heventh street, in this: that the defendant, by its servants and agents, negligently drove its locomotive engine and tender against the plaintiff with great violence, and threw the plaintiff with great force upon the. ground, thereby causing him great bodily injury, etc., to the damage of the plaintiff twenty thousand dollars. The defendant demurred to the plaintiff’s declaration, which demurrer was overruled by the court, the plea of not guilty was interposed, and issue joined thereon, and the case was submitted to a jury, the testimony was submitted, and the defendant, demurred to the plaintiff’s evidence; and the jury found for the plaintiff, and, assessed his damages at two thousand dollars, and, if l;he court found for the defendant on its said demurrer, then they found the defendant not guilty ; and the court, having found that the law was for the plaintiff on said demurrer, overruled the same. The evidence was set out, and the
Row, the evidence shows that the plaintiff, on the 24th day of April, 1893, attempted to cross the Chesapeake & Ohio Railway track, at ¡Seventh street, in the city of Huntington. The plaintiff, in his testimony, says; “When I got to the railroad, this little switch engine was going mp. T saw it just below the street. It was coming up, and I stayed there; stopped — I don’t know — perhaps some ten or fifteen feet from the track, until it passed up. Then 1 started across on the regular crossing, right where L always crossed. I had crossed there two or three times a day, and, when I got on the track after he had passed up with his engine, I started over as usual; and I suppose he reversed his engine quick, after T got on the track. I cannot remember any more.” On cross-examination, he was asked : “How far did you see it away from the street before you started across the track? How far had it gone by you? A. I cannot tell exactly, but I suppose, maybe, the engine was the length of it or more from me when I started across. Q. You did not wait to see whether it was coming back or not? A. Well, he run up, and went past me, and I cannot tell. Q. You thought it was still going on further, did you? A. That was my idea, of course. Q. You did not look to see whether'or not it was coming back as you stepped on the track? A. Ho, of course, I did not look to see. Q. If you had looked, was there anything in the way that would have prevented you from seeing it coming back at the time you started to go on the track? A. Of course, I could have seen it if I had looked up, I suppose; but the way he does there, he reverses so quick that little engine. Q. Yrou knew that, did you? A. No; I never noticed until afterwards. Q. At
These are the rulings of some of our sister states upon the question of contributory negligence, but we need not go beyond the limits of our own state to find the rulings which clearly and distinctly define the effect of contributory negligence upon a claim asserted for damages on account of injuries received by reason of the negligence of another party. Ho, in the case of Gerity's Adm'x v. Haley, 29 W. Va. 98, (11 S. E. 901,) this Court held that, “where negligence is the ground of an action, it rests upon the •plaintiff to trace the fault of his injury to the defendant, and for this purpose he must show the circumstances under which the injury occurred; and if, from these circumstances so proven by the plaintiff, it appears that the fault was mutual, or, in other words, that contributory negligence was fairly imputable to him, he has, by proving the circumstances, disproved his right to recover, and, on ihe plaintiff’s evidence alone, the jury should find for the defendant.” Again, in the case of Beyel v. Railroad Co., 34 W. Va. 538, (12 S. E. 532,) which may be regarded as a leading case upon this question in this state, the syllabus reads as follows: “Failure to ring a boll or blow a whistle on an engine, as required by the Code, c. 54, s. 61, is negligence for which a railroad company is chargeable; but this does not excuse a traveler on a highway crossing a railroad track from the exercise of such reasonable care and caution as the law requires to ascertain whether a train is approaching the crossing. (2) The traveler and the company have mutual and reciprocal duties and obligations in such case, and, though a train has the right of way, the same degree of care and diligence to avoid collision is due from both. (8) It is the duty of a traveler on the highway crossing a railroad to look carefully for an approaching train, and if looking leaves any doubt, or the view is obstructed, he must also listen before attempting
Now the plaintiff’s own testimony shows that his eyesight and hearing were good, that there was no noise to prevent his hearing, no obstruction to prevent his seeing the train returning if lie had only taken the precaution to look; and we must conclude that lie was lulled into security by the fact that the train had passed and he did not anticipate its immediate return, and that, without using the least precaution-, he walked heedlessly onto the track in front of the approaching train. Under these circumstances, notwithstanding the agents of the railroad may have been guilty of negligence in not ringing the bell and blowing the whistle, in the light of the authorities above quoted, niv conclusion is that the plaintiff was guilty of such contributory negligence in this case as precludes his recovery.
The judgment complained of is reversed, and this Court, proceeding to render such judgment as should have been rendered, gives judgment for the defendant upon the demurrer to the evidence, with costs.
Ji eve mal.