86 W. Va. 271 | W. Va. | 1920
This is a suit for the purpose of recovering damages for injury done to a truck owned by the plaintiff by being struck at a railroad crossing by a train of cars operated by the defendant over the Norfolk & Western Eailway Company in McDowell county. The declaration charges that the defendant negligently failed to keep the said road crossing in a reasonably safe condition for the passage of vehicles thereover; that the defendant’s agents and servants in charge of the train which hit the plaintiff’s truck
The facts shown by the evidence, so far as they are material to the disposition of the errors assigned, are that the plaintiff was engaged in constructing roads in the county of McDowell under a contract with the county court of that county, and the truck which was destroyed was being used by it in that service. At the place of the accident one of the regular highways of the county of McDowell crosses the railroad tracks. The improvement of this road by the county court necessitated some change in the road crossing in order to adjust the same to the improved road. While the improvement of the road was going on, which was the case at the time of the accident, a large part of the public traffic was diverted from this highway to another, but such travel as went to the town of Kimball was still allowed to use this road, and the plaintiff also used this road in hauling its material for the road construction. The defendant’s foreman, in order to properly make the changes in the crossing which were necessary for the reason aforesaid, constructed a temporary crossing at a point near to the regular crossing, with a view of diverting the traffic around the regular crossing while he was changing the same. The driver of the plaintiff in charge of this truck had hauled a load of cement from one of defendant’s cars to its mixing plant, and was returning with a view of getting another load to be taken to the same place. It appears that this is the first time the plaintiff’s driver attempted to use this temporary crossing. On this occasion he drove upon the same and when his front wheels got between the rails and the rear wheels near to the first rail, over which the front wheels had passed, it stuck, as he says, because the material used in the crossing was so soft and infirm that it would not hold the wheels of his truck to which the power was applied so as to provide force sufficient
That it was the duty of the defendant to keep this crossing in a reasonably safe condition for the passage of vehicles thereover cannot be doubted. In the case of Roberts v. Baltimore & Ohio R. R. Co., 72 W. Va., 370, it was held that while the railroad company was not required to exercise the highest degree of care to maintain railroad crossings- in a safe condition, it was required to use the same degree of ordinary care to this end as is required of comity courts in relation to the public highways, or municipal corporations in regard to public streets, and that is to maintain the same in reasonably safe condition for the character of travel for which they are used in the ordinary modes by day or night. That the plaintiff’s truck, stuck upon this crossing is beyond question, and it seems to be reasonably clear that 'the cause of this trouble was the crossing was made of such loose material that the wheels of the truck to which the power was applied would revolve and displace the material instead of advancing the truck. Can it be said as matter of law that to make a crossing of such material under the circumstances is a reasonable provision for travel? Of course it must be borne in mind that this crossing was only temporary, and was intended to bq used only while the regular crossing was being permanently adjusted to tire improved road, and the defendant would not be expected to make it of that permanent character which would
But the defendant urges that the plaintiffs driver was negli•gent in going upon this crossing without looking for the approach of a train. In his testimony the driver says he did look, and that there was no train in sight, but in a statement which he signed previous to the trial he says that he did not look prior to driving upon the crossing. It matters little as matter of fact whether he looked for an approaching train or not, for the evidence of other witnesses puts it beyond doubt that the train was not in sight at the time he went upon the crossing, nor did it appear for some little time after he went thereon, and while he was exerting himself to get the truck off of the crossing to.a place of safety, so that we cannot say that the plaintiffs driver was guilty of any negligence in going upon this crossing under the circumstances. It was provided by the defendant to be used while the regular crossing was being repaired, and the plaintiffs driver, not knowing that it was unsafe for the purpose, had a right to assume that the defendant had made reasonably suitable provision for crossing the track at this point, and there being no train in sight at that time it was not negligence for him to attempt to cross by Hie means provided by the defendant for that purpose.
The witnesses introduced testify that no alarm was given by the engineer of the approach of this train before it reached the crossing, as required by statute. This can make little difference in this case, for it clearly appears that the plaintiff’s truck was upon the crossing before the defendant’s engineer would be required to give such an alarm, and the fact that it was not given could have no connection with the driving of the truck upon the track. The only connection between the failure to give the alarm and the accident is that if the alarm had been given the plaintiff’s driver, thus being warned of the approach of a train, might have resorted to some other means of getting the truck off the track,
On the question of whether or not the defendant kept a sufficient lookout upon this train as it approached this crossing, the evidence shows that there was such a lookout upon the front of the train, but the argument is that this lookout was not sufficient for the reason that the engineer could not see any signal given by the brakeman on the front of the train because of the curve in the track, and it is contended that the evidence fairly discloses that he did not in fact see the signal when it was first given, nor .was it communicated to him, because the train did not slow down until within a few feet of the crossing, and that after it did begin to slow down it stopped within a very few feet. The evidence is that the train was going up grade at a very slow rate of speed, and presumptively it co-uld have been stopped within-a short distance, but there is no evidence except the inference which arises from the fact that the train did stop within a very short^distance after it began to reduce speed, that A could have been stopped before hitting the truck after the crossing came in view of the brakeman on the front car, nor is there any evidence that the signal given by the brakeman on the front car was not communicated immediately to the engineer by other employes stationed at other points upon the train. The fact that the train did not begin to slow down until it was within a very short distance of the crossing cannot be said to prove that the engineer did not receive the signal at the time it was given, for it must be borne in mind that after receiving the signal it would require a little time for the engineer to- adjust the apparatus so that the same would begin to operate to reduce the speed of the train, and while he was making these adjustments the train* of course would be moving forward, so that it may have been that the distance covered by the train before the. speed of the same was reduced was because of the fact that it required this time for the engineer to adjust the machinery so as to make it operate to reduce the speed of the train instead of his failure to receive the signal to stop. In order to malee this complaint
Counsel for the defendant argue that conceding that the defendant was negligent in not providing a reasonably safe crossing, and that the plaintiff’s driver was not negligent in going upon the same under the circumstances, yet the defendant cannot be held liable for the resulting damage to the plaintiff’s truck because the evidence shows that the plaintiff’s driver had the last clear chance to avoid the accident after the danger became imminent, for the reason that he says that he could have backed the truck off of the track and avoided injury to it. The driver’s evidence upon this question is not entirely clear. He says in one place that he could have backed the truck off the track, but again he says that he did not know whether this result could have been accomplished or not for the reason that he had not tried it. Construing it altogether it may mean no more than that assuming that the truck would move backwards it could have been backed off and the accident avoided, but from the fact that he did not try to move it in that direction he could not tell .whether it would respond when the machinery was adjusted to so operate any better than when adjusted to operate in the opposite direction. At any rate he says that he did not try to back the truck off the track, and assuming that it clearly appears that if he had attempted to do this as soon as the danger became imminent it could have been accomplished and the accident avoided, can it be said as matter of law that his failure to do so under the circumstances constitutes negligence? It must be borne in mind that when one is called upon to act suddenly and in an emergency, such as was presented here, the law makes allowance for errors in judgment and does not exact of him the same cool, calm deliberation which would be expected were: he acting in a situation not fraught with immediate danger.
We, therefore, reverse the judgment of the circuit court of McDowell county, set aside the verdict of the jury, and remand the cause for a new trial.
Reversed, verdict set aside, remanded.