177 S.E. 871 | W. Va. | 1934
Plaintiff, Paulina Foster, as administratrix of the estate of her husband, Frank Foster, deceased, recovered a judgment of $6,000.00 against New York Central Railroad Company, for the death of decedent alleged to have been caused by the negligence of defendant.
The deceased was fatally injured in Fayette County, April 12, 1933, about seven-thirty A. M., in attempting to urge his cow from the railroad track of defendant in view of an approaching passenger train. The cow was struck by the engine and violently hurled against him while the train was traveling 28 to 30 miles an hour. The trainman did not attempt to stop or reduce the speed of the train. In the vicinity of the accident, the railroad, Gauley River and a public road are substantially parallel and in close proximity to each other, the railroad being between the river and the highway. C. E. Chapman, the only eye witness for plaintiff, testified that the deceased was driving the cow in the public road when she suddenly entered upon the track about 150 feet (five or six rail lengths) ahead of the train; that she then walked down the track 20 or 25 feet facing the train, closely followed by deceased striking at her with his cane in his left hand and waiving his right hand toward the train; that at the time of the impact, the front feet of the cow were outside the rail nearer the highway and her rear feet between *684 the rails; and that deceased was standing at the end of the ties, 24 3/4 inches from the rail next to the public road. The engineer of the train testified that he first observed the cow in the public road 20 or 25 feet in front of Foster about 150 feet from the train; that she suddenly turned toward the track when she was 75 or 80 feet from the train, but, owing to the curvature of the track, he was unable thereafter to see either the cow or the driver. The fireman testified that he first observed the cow in the center of the public road about 150 feet from the train when she turned toward the track, but did not see her again until after she was struck, and never observed Foster. The engineer and fireman also testified that the train could not have been stopped, after the discovery of the cow, within less than 600 feet, while a former locomotive engineer, testifying on behalf of plaintiff, expressed the opinion that it could have been brought to a standstill within 90 or 100 feet.
Assuming that the engineer was negligent in failing to stop or reduce the speed of the train, the deceased, in our opinion, was guilty of contributory negligence barring recovery on behalf of his estate. He met death by voluntarily placing himself virtually in the path of the approaching train. One injured in an effort to save property endangered by the negligence of another is not guilty of contributory negligence, if, under the circumstances, an ordinarily prudent person would have incurred the risk (45 C. J. 968-9), but no one should be permitted to recover for injuries sustained in attempting to rescue mere property in the face of obvious danger such as no reasonably prudent man would, under the circumstances, incur. 20 Rawle C. L. 133. In Eckert v. Long Island Railroad Co.,
The judgment of the circuit court is reversed, the verdict of the jury set aside and a new trial awarded.
*686Judgment reversed; verdict set aside; new trial awarded.