71 W. Va. 701 | W. Va. | 1913
This action was brought to recover damages for the negligent killing of Samuel Canterbury, plaintiffs intestate. A verdict and judgment in favor of the plaintiff were obtained in the circuit court. The case is now before us on writ of error. Three grounds of error are relied on in the defendant’s brief: first, that improper testimony was allowed to go to the jury; second, that the jury was improperly instructed; third, “that upon the merits there should have been a verdict for the defendant”.
Canterbury was killed in Marmet, a village of eight hundred
The evidence of which the defendant complains relates to the character of the crossing. It is true, no highway established under the forms prescribed by law crossed the right of way at that point. But the proof shows a long-continued use .of the place where the accident occurred as a crossing. The railroad runs through and divides the town. The residents of the village used the crossing from fifteen to twenty years, in all respects as if it were in fact a public crossing. True, a fence was maintained by the defendant along its track; but it also constructed and maintained a gateway through the fence to the crossing. A driveway extended from different parts of the village direct to the gateway. For years prior to and at'the time of the accident, it had been and was adopted by the public and in constant use as a ready means of access to and from the county road. The defendant placed heavy planks on each side of the outside rails, filled up with ballast the space between the ties, and kept the crossing in repair. Canterbury was killed some time about seven o’clock in the evening. He left his brother at Well’s store, located two hundred feet east of the crossing, about an hour before his death, and was last seen, .immediately after he left the store, approaching the crossing, where he had arranged to meet his brother after going to the post office. The night was dark. Ho one saw the 'accident. The engine was mid-train. It carried a head-light, but other cars preceding the engine obstructed the light. His body was found between seven and eight o’clock. His toes, fragments of clothing, and bloodstains were found on the crossing. The proof is abundant to show that his death was caused by the defendant’s train; and it is liable for the injury, provided the public character of the crossing was such as to require ordinary diligence and care by its agents in order to avoid injury to persons and property using it as a public crossing.
We think the evidence is affirmatively sufficient to support the finding of the jury, as virtually it did find, that the place of in
In Ray v. Railway Co., 57 W. Va. 333, 338, Judge Beannon, quoting from Elliott on Railroads, says: “In order to impose upon the company the duty to treat a place as a public crossing, those who use the place as a crossing must either have a legal right to so use it, or must use it at the invitation of the company; and 'neither sufferance nor permission nor passive acquiescence is equivalent to an invitation’. If however, the traveler uses a place as a crossing by invitation of the company, it must use ordinary care to prevent injury to him, as where the company constructs a grade crossing and holds it out to the public as a suitable place to cross. Where by fencing off a foot-way over its tracks it induces the public to so use it, by building to the track plank bridges for foot passengers, or by constructing gates in the railroad fence for the use of pedes^-trians who habitually cross'the track, it thereby holds out the place as proper for them to use. Such invitation as imposes on the company the duty of ordinary care is implied, where by some act or designation of the company persons are led to believe that a way was intended to be used by travelers or others having lawful occasion to go that way, and the company is under obligation to use ordinary care to keep it free from danger.”
In Railroad Co. v. Carver, 88 Va. 63, it is held that if “the tracks where plaintiff’s intestate whs killed had long been used by the public with defendant’s knowledge and acquiescence, then deceased was not on the track as a trespasser, but as a licensee”. The same case is authority, if such be necessary, that
Greater care and prudence is required of a railroad company in the operation of its road at places where pedestrians are accustomed to travel on or across its railroad at any particular place than is required at places where the tracks are not so used. A difference exists between the degree of care due from a railroad company under ordinary circumstances to a trespasser and licensee; yet if the company through its agents knows that its right of way at a certain point is constantly in use as a foot-way in a village, town or city, and that people pass over it daily and at all hours, the railroad company can not rvithout fault proceed in a manner which must necessarily be dangerous to such persons, whether trespassers or licensees. II Encyc. Dig. 582, and cases cited.
The doctrine laid down in Huff v. Railway Co., 48 W. Va. 45, does not militate against the views above expressed and
We think the character of this crossing was such as to require the defendant to use a higher degree of care than it did use on the night of the accident. No signals or warning, statutory or otherwise, were given of the approach of the train. There was no light at or -near the front car, nor proof of any except the statement of the brakeman that he was walking on the ground with a lantern, but he did not see the deceased. Hone of the trainmen saw him, nor did they know he had been struck and killed until after the discovery of his body. We are of the opinion, therefore, that the evidence of which the defendant complains was proper, and that no error was committed in permitting it to go to the jury.
Nor do we think the jury was improperly instructed. The first instruction on the plaintiff’s behalf is sufficiently disposed of by the discussion of the evidence relating to the character of the crossing. It was not limited to statutory warnings. It employed the word “warnings” in a general sense; and we think it was the duty of the defendant not only to exercise care and caution, but to exercise the further precaution of having a light at the front of the advancing car and to give some warning of its approach. In the language of the instruction, “the failure to give such signals or warnings was,” in our view, “the proximate cause of the death” of decedent. The giving of the second instruction for plaintiff was also free from error. '“Where the plaintiff has shown negligence on the part of the defendant, if the defendant relies on contributory negligence of the plaintiff, the burden is on the defendant to prove it, unless it is disclosed by the plaintiff’s evidence, or may be fairly inferred from all the circumstances; and, in the absence of such proof, the person injured must be presumed to be without fault.” Railway Co. v. Bryant, 95 Va. 212; Kimball v. Friend, 95 Va. 125; Railroad Co. v. Gilman, 88 Va. 239; Beyel v. Railroad Co., 34 W. Va. 538, 545. The language of these cases is practically identical with that of the instruction itself.
Plaintiff’s third instruction is supported by the case of McVey
Defendant’s instructions refused are either not warranted by the proof or incorrectly state the law. The first instruction was mandatory, and was properly refused, because there was sufficient evidence to carry the case to the jury. The impropriety of the fourth and fifth instructions sufficiently appears from previous discussion. The ninth was defective in its conclusion — “the railroad company would not be liable for his death unless the jury find that the agents for defendant did discover him on track in time to have avoided accident.” It should have contained the qualification, “or by the exercise of reasonable diligence could have discovered him on 'the track in time to have avoided injury.” The authorities are in accord
We are unable to find error in the record, and therefore affirm the judgment.
Affirmed.