83 W. Va. 755 | W. Va. | 1919
•The inquiries arising upon this writ of error to a judgment for the defendant, rendered on a directed verdict in an action for personal injuries, are,. (l) .whether the defendant was negligent, and (2), if so, -whether the plaintiff was guilty of contributory negligence barring right of recovery.
The defendant owned and operated a double-track electric railway on a public highway known as the National Road on which the plaintiff’s residence property abutted. This traction line extended from a point on or near the boundary line between Pennsylavnia and West Virginia and close to the town of West Alexander, Washington County, Pennsylvania, to the City of Wheeling. For the most part, it was located on the National Road, but at certain places it seems to have deviated therefrom. Immediately in front of the Dimmey residence, however, it _ was entirely on the public highway. At least, the jury could have found from the evidence that it was. What is called the inbound track was on the side of the road nearest the plaintiff’s residence, and the rail of that track nearest the residence is only about' four feet distant from the gate and the property line. Along the front of the residence property, there was an iron.fence hav-
• The plaintiff was injured on the 10th day of July, 1916, at about five o’clock P. M., while endeavoring-to cross the defendant’s tracks, to obtain bread from a baker’s wagon standing in the highway beyond them and in front of her residence. Coming from her house to the gate, she held up two fingers to indicate" to the baker that she desired two loaves of bread. Looking to the east after having arrived at the gate,’ or while on the way to it, she- discovered an inbound car approaching, aiid looldng to the west, she saw an outbound car coming. After having waited until both had passed the gate, she made one or two steps from the gate and was struck by another inbound car following the one that had'first passed, and severely injured. She.says the first inbound ear and the outbound car passed each other at a point'about thirty-five or forty feet west of the front gate and that she stepped out from the gate just as the rear of the outbound car passed it. Tf she is correct in this, the car that struck her must have been within fifty or sixty feet of the gate at the time at which the other two cars passed each other. ’ She did not-reach the track at all. It was only-about four feet from the gate and the overhang of the car left a space of only about two feet between it and the gate, and it
All of the cars were running at the rate of about twenty-five or thirty miles per hour. The plaintiff swears the first inbound car sounded its gong before it reached the gate, but that the other did not do so nor give any warning of its approach. The baker and his grandson say the second one sounded its gong at or near the gate. Witness G-uimar who was a passenger on the. car says it neither rang its bell nor blew its whistle. At that point, the ears ordinarily ran at the rate of twenty or thirty miles per hour, and they sometimes gave warning of their approach, but did not always do so-. The testimony of the conductor on the car that struck the plaintiff will bear the inference that there was no definite rule of the company as to warning of the approaches of cars to the gate in question. He said that depended largely upon the man running the ear and that some of the motormen gave warning and others did not. A witness who had been a motorman of the company both before and after the injury testified that he had had no instruction as to warning of approaches at the gates, but had been instructed to ring the gong at crossings. Ordinarily, the ears ran in each direction, at intervals of seven to ten minutes, but they often ran very close together, and the plaintiff was fully advised as to the method of operating them.
' Whether, under the circumstances stated, the defendant was negligent depends in part upon certain legal principles. Of course, there can be no negligence on the part of one who has- omitted no legal duty, nor invaded any legal right of another. Hence, upon every inquiry as to the existence of
. The dangerous character of the plaintiff’s private crossing was obvious and as well known to the defendant’s motormen as to her, and this fact they were bound to observe in the operation of their cars. It may not have imposed a duty always to sound warnings of the approach of the cars, but it manifestly required'the maintenance of a sharp look-put at that point and the giving of an alarm on the appearance of an attempt to use the crossing, under circumstances making it dangerous. Its close proximity to a curve which, the jury-might have found-under the evidence, obstructed the mew of persons about to use it from the north side was a circumstance strongly tending to emphasize the duty of precaution on the part of the operators of the cars. While the speed at which they ran at that point was not necessarily excessive, it was- another circumstance tending to increase the danger of the situation, and, consequently, to enlarge the duty -of care and- caution, which always depends upon the circumstances; what, is .ordinary care under some circumstances being gross .negligence under others, and what is a high degree "of care, under certain conditions being only ordinary care under others. To these conditions ordinarily and normally prevailing at the point in question, must be- added others which came into being on the occasion of the injury. Although cars going in the same direction often ran close together, -the evidence was such as would have justified a jury in finding.that an .interval of several minutes usually intervened between cars going in the same direction,-.-and that the situation created by one closely following another was unusual and abnormal. The motorman of the second inbound <jar, knew.this as well as the plaintiff, wherefore he may be deemed to have known that his car would be particularly and extraordinarily dangerous to anyone attempting to use
The issue as to contributory negligence on the part of the plaintiff should have been permitted to go to the jury also. She exercised the usual precaution, looking both ways for cars. Had the ordinary conditions obtained, the prudence she exercised would have saved her. At' the time at which she looked toward the east for approaching cars, the one that struck her was ho doubt on the curve and not within the range of her vision. Ordinarily, no ear would. have been in its situation at .that time. Of course, she knew a car sometimes closely followed another, but she had right to assume that, in such, case, more than ordinary precaution would be exercised by the motorman for the safety of pedestrians, and that he would not, without Avaming, run his car in such manner as. to preclude her safe passage over the track. This conclusion is based upon an obvious corollary of the duty the law imposed upon the defendant, respecting the operation of the second or following car. Both propositions Avere applied, under circumstances .very similar to those disclosed here, in Hart v. Cedar Rapids etc. Ry. Co., 109 Ia. 631. There a vehicle carrying four passengers was struck by a trolley car following another, at a street crossing. After
Being clearly of the opinion that the ease, as presented in this record, is one for jury determination,1 we will reverse the judgment, set aside the verdict and award a new trial.
Reversed, verdict set aside, new trial awarded.