61 W. Va. 272 | W. Va. | 1907
Lead Opinion
John H. Bowles was killed by a train of the Chesapeake and Ohio Railway Company, and his widow and administra-trix, Rushia A. Bowles, having recovered a judgment against the company for $6,500 damages, the company appeals.
Bowles and wife on a dark night, 19th January, 1904, were walking on the railroad right of waygoing to a restaurant at Lewis Crossing, which was a crossing of a public road over the railroad, Bowles walking not on the 'track, but in a space
The defense was refused the following instruction: “The court instructs the jury that the undisputed facts in this case show that Jno. II. Bowles was unlawfully walking on defendant’s track for his own convenience in going to Wood’s restaurant, and although he may have been struck on or near the crossing, yet his administratrix cannot recover damages for his death even if legal signals were not given nor lights displayed, unless you find from the evidence that after he was discovered on the track, the defendant’s employees by the exercise of reasonable care could have avoided striking him. ” This assumes that the “undisputed facts” proved that Bowles was unlawfully walking on the track, when in fact he was not in the sense of one walking on the track over which cars run. but was walking on a space twelve feet wide between tracks over which trains moved. The instruction would make Bowles for that reason a trespasser to whom the railroad owed no duty on the crossing, under principles stated in Huff v. C. & O. Co., 48 W. Va. 45. That rule does not apply to this case, as Bowles was killed on the crossing. He was not using the track as a footway as in the Huff Case. On that space Bowles was not a trespasser in that sense; he neither obstructed trains, nor was he in imminent danger like a walker on the track. He was a trespasser only in the sense of civil law making anyone a trespasser who enters another’s close. The instruction is verjr misleading, as it would require the jury fo place Bowles in just the same place, and guilty of the same culpable, gross negligence chargeable to one walking between rails, where the railroad would not be liable at all, unless the trainmen saw him and could be charged with gross negligence in failing to save him. And further it tells the jury that though Bowles may have been struck on the crossing, the fact that he had so walked on the track would exonerate the company from liability, even though no signals were given or lights displayed, unless after discovery of Bowles the employees by care could have avoided striking
For these reasons we must affirm,the judgment.
Rehearing
ON REHEARING.
Upon a petition for rehearing it is proper to say, that the above opinion does not mean that one walking on a railroad’s, right of way, though not between the rails, is not a trespasser. The opinion says he is a trespasser; but it does not pretend to treat of injury received by one so walking, while there walking. We do not say what is the duty of the company, or what its’ liability under that state of facts. The opinion rests on“ the basis that Bowles, though he had been walking on the right of way, in the space between the tracks, had reached the crossing. The instruction would say that so walking made Bowles a trespasser so far that, even if he had reached the crossing, he was not entitled to the safeguards and warnings given by law to those using a crossing; it. would impose this penalty, the loss of such safeguards and warnings, for the past wrong of Bowles in reaching the crossing by walking on the right of way. The above opinion was intended to show that his so reaching the crossing could not. deprive him of the safeguards given by law to one on a public crossing. I repeat that it does not touch the question of liability for an injury received by one walking on the ground
If we suggest that by being on the right of way and thus close to the noise of the passing freight train he disabled himself from hearing the other train, still he was entitled to lights on the backing train so that he could save himself by discovering it by sight. He had right to the help -of both hearing and sight. He was also entitled to a bell sound on the backing train, as we do not know whether the freight was just there; indeed, as the evidence is that it just passed, we may say that a bell sound on the backing train would have warned him.
Afbrned.