87 W. Va. 233 | W. Va. | 1920
The plaintiff, while driving two horses belonging to him ittached' to a buggy, was struck by a train operated by the
The plaintiff was a rural mail carrier at the time of "the accident. His trip began in the morning at Gallipolis Perry, and extended to some point out in the county of Mason, which is not named in the record, and in the afternoon he returned to Gallipolis Perry, but by a different road from that used by him on his outward bound trip. On this return trip the road led him across the track of the Baltimore & Ohio Railroad Company which was then being operated by the defendant Director Gieneral of Railroads. Before reaching the particular crossing at which this accident occurred the public highway for several hundred yards ran along parallel with the railroad track. The highway, however, was located down in a low bottom, while the railroad track was elevated some fifteen or twenty feet above. Just before reaching the crossing the highway turns toward the railroad track and ascends an embank-ment to a level with the railroad, and crosses the track at an angle of about forty-five degrees. Just a few feet north of the crossing the railroad track curves slightly, but not sufficiently to obstruct the view thereof by one approaching the crossing from the direction in which the plaintiff was approaching it. About six hundred feet from the crossing, however, there is a considerable curve in the railroad track; and because of this curve, as well as because of the fact that there is a deep cut through which the railroad runs, a view of the track, or of a locomotive approaching thereon, cannot be had from the crossing for a distance of more than about six hundred feet. The accident occurred on the 12th day of Pebruary which’was, according to the testimony, a rather cold, cloudy day, there having been frequent showers of rain and sleet during the day, and the plaintiff says that just before he reached the crossing, and while he was starting up the incline in the high
The sole negligence charged in the declaration, and relied upon for a recovery, is that those in charge of the train did not sound any alarm upon approaching this crossing, as required by law, by reason of which failure the plaintiff sustained his injuries. Under the instructions of the court, in order to find for the plaintiff at all, the jury were required to find that the crossing alarm was not given, so that the jury’s verdict necessarily found that the engineman did not blow the whistle, nor ring the bell when approaching this crossing. This finding is supported by the evidence which is conflicting upon this point. The plaintiff introduced a' great number of passengers who were on the train, all of whom swear that they heard no crossing signal given. Little weight, however, could be given to their testimony, as it was of a purely negative character, and not only that, but their situation upon the fast-moving train was such that there was very little probability, indeed, that they would have heard the signal had it been given, unless their attention had been particularly directed to it, 'which is not shown to be the case. But there are some other witnesses whose testimony is of a more convincing character. One witness testifies that just .before this accident5 Canterbury stopped at his boat, which was anchored near the crossing, and talked to him; that at the lime the train passed he, together with a companion, was standing very near the whistle board; that their attention was attracted to the passing train, and both of them swear that it did not give the crossing alarm. There were also introduced two female witnesses, one of whom lived near the point of the accident, who stated that they had just crossed the railroad going up'a hollow to the residence of one, of them, at the time the train passed, and that this point at which they crossed was right at the whistle board., and that the train did not whistle, and one of them testifies that they
The defense most insisted upon is that, assuming that the crossing signal was not given, still, under the evidence, the plaintiff was guilty of contributory negligence such as bars a recovery upon his part. In fact it may be said that this is the only question of substance involved in the case. There is no room for the application of the doctrine of last clear chance, as it clearly appears that it would have been impossible to stop the rapidly-moving train in time to prevent the accident had the engineer seen the plaintiff upon the crossing at the very earliest moment that he could have been seen from the locomotive. The defendants insist that the plaintiff was guilty of contributory negligence in driving upon the track under the circumstances shown. It appears that while the plaintiff was driving along the highway parallel with the railroad track, a view could not be had of the railroad in the direction from which the train came further than the deep cut above referred to,‘which was about six hundred feet from the crossing, and through which the railroad track was laid upon a considerable curve, nor could a clear view be had even of the track between this point and the crossing until a traveler reached the top of the incline just before going upon the crossing. At a point about forty-five feet from the center of the track measured along the center of the highway, a locomotive would be visible for a distance of six hundred feet in the direction from which the train came that struck the plaintiff. This point of observation is only about twenty-six feet from the center of the railroad track measured at right angles thereto, but because of the fact that the highway intersects the railroad at
Under this state of facts, was the plaintiff guilty of contributory negligence as matter of law? It must be borne in mind that the fact that one is injured at a railroad. crossing does not of itself prove that he is guilty of contributory negligence. It may be true, and no doubt is that in very many of the cases recovery has been denied upon this ground, but there are quite a few in which recovery has been allowed upon the theory that under the peculiar facts shown it was for the jury to say whether or not the plaintiff had exercised reasonable care and prudence for his safety. It is suggested that the plaintiff’s statement that ho looked in the direction in which this'train came, and saw the track clear for the distance of six hundred feet just before entering upon the track cannot be true, for the reason that if such had been the case he would have gotten clear of the crossing before the train could have reached him, and our first impression inclined us to give consideration to that contention, but when the’ speed of the oncoming train is considered, we find that it would only take this train nine seconds to travel a distance, of six hundred feet, while the plaintiff was some forty-odd feet away from the center of the crossing at the. time he made-the view, his horses walking at an ordinary gait. The plaintiff’s statement, therefore, does not appear at all unreasonable. These nine, seconds easily may have elapsed between tire time he turned his head to look in
It is also argued that this is a dangerous crossing, and was known to be so by the plaintiff. That is quite true, and the court instructed the jury that because of this fact the plaintiff was required to exercise more care than he would be called upon to exorcise had there been a clear and less unobstructed view of the railroad track. The plaintiff did not stop his team before entering upon the crossing, nor can we say that he would have accomplished anything bv doing so. He could see just as far while the team was moving as he could had it been standing still, and it does not appear that he could have heard a train approaching for any greater distance had his buggy been standing than he could under the existing circumstances.
In answer to special interrogatories submitted to them, the jury found that the plaintiff did look and listen before going upon the-track, and that he did take reasonable precaution for his safety. The law does not require that a traveler over a railroad crossing at a public highway shall bo ubiquitous, hut he is required to use for his own saftey the faculties with which nature has endowed him. He may not enter upon a crossing blindly, nor without making any observations to determine whether or not trains are approaching the same. The fact that the law imposes upon railroad companies the duty of sounding a crossing alarm before passing over a public crossing indicates that something more than care upon the part of the traveler using the crossing is considered necessary to prevent accidents thereat. The law considers that such crossing accident's can only be prevented by the exercise of due care, both upon the part of the traveler, and upon the part of the railroad company. In this ease the jury has found that the railroad company did not perform the duty imposed upon it, and it has also found that the plaintiff did take proper precaution for his safety before entering upon the crossing. The plaintiff had a right to believe that the defendants would exercise due care before running this train over this crossing, and they cannot be excused from paying damages for the injury inflicted as a result of the negligence of which the jury has found they
Complaint is made of the instructions given to the jury on behalf of the plaintilf. A number of these instructions tell the jury that if they believe from the evidence that the train which collided with the plaintiff did not sound the alarm signal when approaching the crossing, as required by law, and that this failure was the proximate cause of the injury to the plaintiff, and that the plaintiff was in the exercise of due care at the time he entered upon the crossing, the defendants are liable for the resulting injury. These instructions propound the law governing eases like this as it frequently has been announced by this court. The converse of the proposition was repeatedly given by the court upon motion of the defendant, that is, that if they believed from the evidence that the plaintiff entered upon the crossing without 'exercising ordinary care for his safety, he could not recover, even though they believed that no crossing alarm was sounded; and they were further instructed that if they believed this crossing was more dangerous than the ordinary crossing, then a higher' degsee of care was required of the plaintiff before entering upon it than would ordinarily be required. It may be said in passing that the theories of the parties as above indicated were unnecessarily repeated to the jury in the instructions, but it appears that neither side is in a position to take advantage of this repetition.
Particular objection is made to plaintiff’s instruction Ko. 9 which told the jury that a traveler on a highway has a right to assume that those in charge of a moving train will-'give the statutory signals, and thus warn him of impending danger and to act on this assumption, unless the traveler actually sees the train, or knows of its approach. This 'instruction, standing alone, is incomplete. It is not binding, and in order to maké
It follows from .what we have said that.there is no error in the judgment complained- of, and the same is affirmed.
Affirmed.