| W. Va. | Mar 21, 1894
Lead Opinion
1. This is an action of trespass on the case, brought in the Circuit Court of Kanawha county in February, 1892, by Maggie Raines, administratrix, against the Chesapeake & Ohio Railway Company for negligently .causing the death of her husband and intestate, John B. Raines, which suit resulted in a judgment for defendant, from which she has obtained this writ of error.
The declaration contains two counts,both good; and the demurrer of defendant was therefore properly overruled. The issue was joined on the plea of not guilty. A jury was impanelled and sworn, and having heard the evidence of plaintiff in full the court on motion of defendant struck out plaintiff’s evidence; and the jury by direction of the court returned a verdict for defendant. The plaintiff excepted to the ruling of the court excluding her evidence and moved the court to set aside the verdict and grant her a new trial; but the court overruled the motion and gave judgment and certified the evidence, as required by our present statute. Code 1891, p. 834, c. 131. s. 9.
Seven witnesses were examined on behalf of plaintiff, none for defendant, and the facts are, in substance, as follows:
The town of Montgomery, where the accident happened, contains from one thousand five hundred to two thousand people; is about one mile long on each side of defendant’s railway, where the company has a station, a yard for storing cars and five tracks running from the station west to the lower end of the town, with spaces between wide enough to put a footman out of danger, and a county road running along nearby on either side — the one on the south side at a distance of about one hundred and fifty yards. The one on the north side of the tracks is quite close, and is the main street of the town, being about fifty feet from the track, where Raines was killed. The track is straight there, and the footman on it could be seen for a long distance by the train going east. No houses were near the
On September 25,1891, about five o’clock in the evening, Eo. 2, the east-bound passenger mail train, with four or five carsbeing on schedule time and running at its usual speed— at about twenty miles per hour at that point' — -came in sight and hearing at the lower or west end of the town, blowing one prolonged whistle for the crossing, and one for the station. As it entered the railway yard at the west end, the steam was shut off, and it ran on at a speed of fifteen or twenty miles per hour by its previous momentum.
Raines, the decedent, was walking slowly on the main track in the railway yard about two hundred yards east of the lower or western limit of the town, and four hundred or five hundred yards west of the station, about six hundred yards above Morris creek bridge, two hundred yards above a crossing at the lower end of the town^with _hig..baek to-' wards the coming train, usd á paper in bis hand, as though he were reading or looking at it. When the coming train got within twenty or thirty feet, or some other short dis- ■ tance, the ’engineer blew the alarm — four or five quick whistles — put on brakes and steam, reversed the engine, and at once did all he could to save him. “The engine Checked considerably,” but passed on about a length of the ■'train before stopping hut struck and killed Raines, who was walking in front towards the depot.
“The fact, that pedestrains are accustomed to travel on a railroad track at a particular place makes it the duty of the servants of the company to exercise greater caution and prudence in the operation of its road at that place.” Nuzum v. Railway Co., 30 W. Va. 228" court="W. Va." date_filed="1887-11-05" href="https://app.midpage.ai/document/nuzum-v-railway-co-6593718?utm_source=webapp" opinion_id="6593718">30 W. Va. 228 (4 S. E. 242.) This point of law arose out of the following facts: The servants of a railway company having in charge one of its engines and trains running within the corporate limits of Wheeling, to and over a public wharf therein, failed or neglected to give notice, at least sixty rods before its approach to the
A railway company running its train is bound for the safety of such.train to keep a reasonable lookout for trespassers on its track, and is bound to exercise such care, as the circumstances .require, to prevent injury to such trespasser; but, having given the signal required by law, it has "a fighVto-pr^SUmeJdiat thg. trespasser, if apparantly a capable person, will use his seuses anti seasonably remove himself from danger — that he can and will protect himself— so it need not diminish its lawful speed, and if the employes of the company omit no duty after becoming aware of his peril the company will not be responsible for a resulting injury ; but if the employes know him to be deaf or helplessly drunk or otherwise specially in danger, or if the person be a child too young to appreciate or avoid the danger, if they then neglect to give a reasonable warning, and keep on and inflict damage, the company will be responsible for an injury to such trespasser if it be guilty of willful or wanton or gross negligence. See Spicer v. Railway Co., 34 W. Va. 514" court="W. Va." date_filed="1890-12-13" href="https://app.midpage.ai/document/spicer-v-chesapeake--o-ry-co-6594271?utm_source=webapp" opinion_id="6594271">34 W. Va. 514 (12 S. E. Rep. 553;) Bish. Non-Cont. Law, § 1037; Railroad Co. v. Sherman, 30 Gratt. 602" court="Va." date_filed="1878-09-15" href="https://app.midpage.ai/document/balt--ohio-r-r-v-shermans-admx-8481975?utm_source=webapp" opinion_id="8481975">30 Gratt. 602-629; Railroad Co v. Harman’s Adm’r, 83 Va. 554 (8 S.E. 251" court="Va." date_filed="1887-06-30" href="https://app.midpage.ai/document/n--w-r-r-v-harmans-administrator-6807897?utm_source=webapp" opinion_id="6807897">8 S. E. Rep. 251) citing with approval 2 Wood, Ry. Law, 1267. See 2 Wood, R. R. Minor’s Ed. 1894) § 320.
Trespassers on railroad tracks are of various kinds differing in the character of the trespasser, as one having his
It has long been settled as a qualification of the general rule making contributory negligence a bar in defence, that the contributory negligence of the party injured will not defeat the action, if it appear, that the defendant might by the exercise of reasonable care and prudence on his part have avoided injuring the plaintiff, notwithstanding the plaintiff’s own contributory negligence; and, asa corailary, the same doctrine has been applied in cases of trespass. Both are but applications of the common-law doctrine, that every one must so conduct himself and so use his own, as not to injure another. Hence, “if those running a train discover a trespasser in danger, they must use all reasonable care and all reasonable exertions, to avoid inflicting injury and to avert from him the impending harm, or the road will be responsible for whatever injury follows.” See Bish. Non-Cont. Law, § 1036, and cases cited.
In Butterfield v. Forrester (1809) 11 East side p. 60, Lord Ellenbo'rough, C. J., says, delivering the opinion : “A party is not to cast himself upon an obstruction, which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to he in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorize another purposely to ride up against them. One person being in fault will not dispense with another’s using ordinary care for himself” — which is a statement of the rule by giving an illustration, and impliedly of the principal which underlies it.
The locomotive-engineer sounded the whistle for the
That Raines had at the same time a paper in his hand looking at it, or reading it; holding it in front of him, was not likely to be noticed by the engineer, or, if noticed, was of no special significance; and, when they came near enough to see that the man might not be aware of his danger, then they did all that could be done to notify and alarm him, and to stop the train, but to no purpose; and this might readily happen under such circumstances without any want of proper care on their part. Witnesses at some distance from the track speak of’the quickly repeated alarm whistle being blown when the train was within a distance of twenty or thirty feet, the air brakes being put on, and the engine reversed, and the “engine considerably checked.”
There is in every case a preliminary question for the judge to determine, and that is, assuming the truth of the testimony and all the inferences that can be fairly drawn from it, would the jury as reasonable men be justified in finding a verdict for the party on whom rests the burden of proof? Would the verdict be against the law ? That is, would a verdict for plaintiff be against the law of the case on the facts proved ? Would the verdict be wholly without proof of some essential fact ? Or is the evidence plainly
There are certain physical facts, which are to my mind conclusive that the statement, that Raines was only twenty or thirty feet ahead of the train, when the engineer commenced to blow the alarm whistle and stop the train, is only amere conjecture, meaning only that the distance was very short.
Five witnesses saw it. • The first one was three hundred yards away. The train could go twenty feet while the sound of the whistle was reaching him. They whistled three or four times:
"Witness No. 2 on this point was about one hundred yards away. He saw the train running at its usual speed at that place — fifteen or twenty miles an hour — with four or five cars. When within twenty feet of Raines the engineer sounded the alarm whistle four or five times, put on the brakes, reversed the engine, and checked it considerably before it struck the man. The engineer did all he could to save him, but Raines was too close. The train ran on sixty five steps — one hundred and ninety five feet — beyond the place where Raines was struck before it stopped. He blew the whistle, turned on the air-brakes, and reversed the engine before it struck him, and then went sixty five steps.
Witness No. 3 was one hundred and twenty feet away. Heard the whistle. Turned his head immediately, and looked towards the train, and saw the man going over about four times. He gives no distance except that measured by the time of turning his head after he heard the whistle. In all likelihood the air-brake was put on and the engine reversed first.
Witness No. 4 gives no distance except that it'was short —so short that Raines could not escape. This witness was but a short distance away. She is the one who speaks of Raines having a paper in his hand, but refused absolutely to say whether it was large or small.
Witness No. 5 was about one hundred yards away. Heard the whistle blow three or four times in quick succession, which attracted his attention to it. Raines was a very short distance from the train ; can not make it more defi
All this means that he was too close for the train to be stopped before it would strike him. As to anything like the accurate distance, this evidence, as a whole, leaves it uncertain. The train was going fifty or sixty feet in three seconds. It is not at all probable that Raines was only twenty feet ahead of the train, when they commenced applying the air-brakes, reversing the engine, and blowing the alarm. Raines had lived at that place at least three years. The train was on schedule time, running through the train yard at its usual rate of speed. There were safe walking ways on either side. He had but to step right or left to be out of danger. He was possessed of sight and hearingnothing unusual in his appearance. The prolonged whistle had sounded twice a short distance below — once for a crossing, and once for the depot. The engineer had a right to presume that he would seasonably step out of danger, and not until he got quite close did he become aware that the man was insensible of his peril. Then he did all he could to save him, but to no purpose; he was too close.
I know of no rule, and can find no case, making it the duty of the engineer, under such circumstances, not to approach a man walking on the track nearer than the distance within which the train can be stopped — say two hundred feet in this case. See Railroad Co. v. Miller, 25 Mich. 279; 2 Wood, R. R, (Minor’s Ed. 1894) § 820, p. 1465. Under such circumstances, to exact of the engineer nice estimates of distance, based on the supposition that the man walking on the track may not be sensible of his danger, and will not step off, seems to me to be unreasonable.
The action of the court in striking out the evidence has been held to be an indirect mode of directing the jury to return a verdict for the defendant, the plaintiff not being willing to suffer a nonsuit. Here it was accompained by an express direction to return a verdict for defendant. I can discover but the one question involved. Does the evidence tend, in any fairly appreciable degree, to make out plaintiff’s case ? I am of opinion that it does not; that
Rehearing
ON REHEARING-.
The evidence in this case explained and qualified, as it must be, by certain well-known physical laws shows to a high degree of probability at least, that the engineer commenced applying the air-brakes, reversing the engine, and blowing the alarm before the train reached a point twenty or thirty feet distant from the footman on the track. As to anything like the accurate distance, this evidence, as a whole, leaves it uncertain ; but it does show clearly, that the train was then much too close to be stopped before striking him; but I take the distance to have been twenty or thirty feet, for they are the figures used by some of the witnesses. So, also, I take the fact to be that footmen at that place were accustomed with the knowledge of defendant to use the track as a walkway; and that the rule of law (pro hoc vice) is that in such case it is the duty of the engineer or fireman to keep on the lookout along the track, and that the engineer was on the lookout and did see decedent walking on the track towards the depot for a long distance.
John B. Raines, the decedent, had lived in the town about three years. About 5 o’clock in the evening of the 25th of September, 1891, he was walking eastward on the track, using it as a footpath for his own convenience, as many persons are in the habit of using it. He had in his hand a piece of paper, looking at it now and then. The size of the paper does not appear. He was in fact an adult, in the full possession of all his faculties, or so on this occasion he
Common sense and common justice applied to the practical affairs of the managing of railroads and the running of trains require, that there must be left to engineers some margin for forming their judgment, which may still be discreet, and some latitude of conduct which may in either event be held to be prudent. He will not, on pain of conviction of negligence in a matter involving life and limb, be held to make, on the spur of the moment, a nicely accurate estimate of the probability that one walking on the track is insensible of his danger, from the mere fact that he is on the track within a distance within which the train can not be stopped; for common observation shows that persons fully aware of the approach of the train cross the track, or fail to step off, although the train may be within such distance; for one second or a half second in time, and two steps or three in distance, will put him out of danger.
In this case the footman was a grown man, apparently in the use of his faculties, physical and mental. He had a signal of danger beneath' his feet. The train was on time. A signal had been sounded half a mile away. The depot was in plain view in front. A prolonged signal for the
I concur in the opinion of the Circuit Court that they do not tend in any fairly appreciable decree to convict the engineer of want of ordinary care. The case therefore passed from the domain of fact, in the sense of á thing to be found by the jury, into the domain of law, to be determined by the court. A verdict for the plaintiff'would have been against law; that is, against the law of the case upon the facts proved. Therefore the Circuit Court did not err in refusing to submit the case to the-jury.
Dissenting Opinion
(dissenting):
The facts in this case are as follows, to wit: The deceased was a'trespasser on the track of the defendant within the corporate limits of the town of Montgomery (one thousand five hundred population) at a place the people were in the habit of using as a walkway. It was about 5 o’clock p. m. — the time for the regular passenger train. An engine had but a few moments before passed over the track. Deceased was walking with his head down, apparently absorbed in studying some paper. He was going east, with his back to the approaching train. The train whistled for the station from one hundred to two hundred yards from deceased. The
Did the engineer see deceased ? It was his duty to see him. Others saw him, who were not bound to see him and not occupying as good a position to see him as the engineer. The law will presume that the engineer discharged the duty to and did see him, unless the contrary appear. At least the jury in the light of the evidence from the facts and circumstances -would have the right to infer, that he being a man of ordinary intelligence attentive to his duties did see him. Such being- the case, what was .his duty — to wait until he was too late, or sound the alarm whistle and ring the bell in time to arouse the deceased, and enable him to avoid the threatened danger ?
In 2 Ror. R. R. 1027, the law is stated to be as follows, to wit: “The servants in charge of a train have a right to presume that a man on the track is of sound mind and good hearing, and will get off in time to avoid danger, * * * and therefore, the train is not obliged to stop, but is only bound to ordinary care of warning by whistling and bell ringing, if the person is seen by persons in charge of it, which is due to all persons on general principles. This done in time for avoiding the danger, the company is not liable.” '
In Finlayson v. Railroad, Co., 1 Dill. 579" court="None" date_filed="1871-05-15" href="https://app.midpage.ai/document/finlayson-v-chicago-b--q-r-9301779?utm_source=webapp" opinion_id="9301779">1 Dill. 579 (Fed. Cas. No. 4793) the law is stated to be: “A railroad company whose train is approaching a man walking lengthwise upon its track must ring its bell and sound its whistle in time to enable him to get off the track; otherwise it is liable(The italics are mine.) “If they being aware of his presence delayed to ring the bell and sound the whistle until he could not have stepped aside and saved himself, in that case there was negligence on the part of these employes, for
Numerous, nay all the cases examined by me present the law in the same way, even including the fourth syllabus in this case, which is in these words, to wit: (4 “If an apparently capable pei’son, and one apparently in the possession of his faculties, is seen walking on a railroad track, the servants of the company running the train having given such signals as may be required, have a right to act on the presumption that such person will step aside in time to secure himself from danger.”
What signals were required ? The court does not state, but presumes they were given. The law quoted says the bell must be rung and whistle sounded in time to warn the deceased of his danger, and enable him to step aside to avoid it. That this was not done in the case before us, the evidence plainly establishes; but the servants of the defendant having the deceased in plain view for over one hundred yards bore down upon him until it was too late, and then, as a wild animal sure of its prey, rushed upon him- with the whistle sounding, as if to make his death the more horrible when it was too late to save him. My conclusion supported by reason, justice and authority is, that it was the duty of the engineer under the circumstances on discovering the deceased on the track one hundred yards away to begin sounding the alarm whistle and ringing the bell, and to continue the same, until the attention of the deceased was attracted or he was struck. In not doing so he was guilty of wanton sacrifice of human life, amounting to gross negligence. He disregarded the ordinary rule of all railroad companies : “In all cases of doubt, take the side of safety.”
It may be a hardship on the company to impose damages on them in such cases; but there is no other way to reach its negligent employes, and enforce a due regard for the law and the lives of citizens, except through the company.
While the law regards a railroad track to be the private property of the company, and the use thereof as dangerous and perilous, yet it lies open to the commons, and affords a dry, smooth, even, level, and convenient walkway for pedestrians, especially in populous communities and is therefore a source of great temptation to the public. The law, in permitting railroad companies to rush their trains through the country at a great rate of speed, requires them to adopt the necessary means to warn trespassers out of their way in time for them to escape death. The ringing of the bell and sounding of the whistle are not matters of much exertion; neither do they in any way interfere with or impede the running of trains.
In this case there is a powerful and wealthy corporation on the one hand with numerous and influential friends, and a bereaved widow and fatherless children on the other, and my deep sympathies for the appeals of the helpless and needy may cause me to hold the scales of justice unequally between them; but it is my sincere judgment, that the evidence should not only have been submitted to the jury, but, as it now stands, is plainly sufficient to warrant a verdict in favor of the plaintiff. My convictions may appear unreasonable to others; yet, while I highly esteem the more mature judgment of my associates, an approving conscience can be the only arbiter that a judicial officer can recognize in discharging his individual duties.