89 W. Va. 356 | W. Va. | 1921
After all the evidence had been introduced defendant demurred thereto, the jury found a conditional verdict of $6,-250.00 in favor of plaintiff, the court sustained the demur
The action is for personal injuries sustained by plaintiff in March, 1919, while walking upon the track of defendant between the towns of Mullens and Corrinne in Wyoming County, by being struck by a locomotive.
Plaintiff was a deaf mute, sixty-four years of age, a painter by trade, and was on his way up the track to Corrinne, where he was engaged in painting dwelling houses. The track seems to have been used generally by pedestrians, the county road running parallel thereto being out of repair at that time and for about one year prior thereto. He was alone, walking at a brisk pace between the rails when struck, at about 7:30 o’clock in the morning. Witness Saxton was also going to Corrinne and was about 800 or 900 feet behind plaintiff, when the locomotive with tender attached (no cars) came from a “j” track which connected with another track across the river (a small stream at that place) and onto the track on which plaintiff was walking. Saxton, perceiving the approach of the engine from the “y”, ran to the intersection of the “y” track with the main line, called the switch, and attempted to attract the attention of the man in the tireman’s cab by motioning to him and then pointing ahead to plaintiff on the track, then 800 feet ahead, but was not sure that he attracted attention, stating that the man in the cab looked at him, the witness, and then looked up the track in the direction of plaintiff. The locomotive was going at about 25 miles per hour, according to this witness, and from 15 to 20 miles per hour according to those on the engine, the fireman, engineman, and an engine watchman who was ‘ ‘ deadheading” to his work, and who was not a member of the engine crew. Witness Saxton testified that the engine proceeded to within about 350 feet of plaintiff when the whistle gave the danger signal of four or five short blasts in quick succession; that plaintiff paid no attention to the signal, being unable to hear, and proceeded as before and oblivious to the approach of the train, which did not decrease its speed. At the place where witness stood he could see the deaf man until the engine hit him, because the track curved slightly
The defense is that the servants of the railroad company had discharged all the duties it owed to plaintiff, and under this evidence was not liable; and further that plaintiff had, by a writing sealed and witnessed, released all claim for damages in consideration of payment of the hospital and medical bills incurred by plaintiff. Plaintiff was first placed in the hospital at Mullens and a short time thereafter removed to a hospital at Beckley, and the release was signed about two weeks after the injuries were received, while plaintiff was in the hospital. He remained there until in July, when he was discharged.
There are two controlling questions presented. (1) Did the train crew use reasonable care to avoid the" accident? (2) Did plaintiff release the railroad company from his claim of damages? Either of these questions answered in the affirmative will sustain the lower court.
First, we consider the evidence of the accident, and principles applicable thereto. A pedestrian, not an employee of a railroad company in the discharge of his duties, who. uses the company’s tracks for his convenience at any other place than at a public crossing, is a trespasser or a licensee, and cannot recover for injuries received by being struck by a locomotive unless the employees of the company operating the locomotive have failed to use reasonable care in the avoidance of injury to him after he is discovered. Kelly v. Ry. Co., 58 W. Va. 216; Blagg v. Ry. Co., 83 W. Va. 449. While it was gross negligence of this plaintiff to walk upon a railroad track where trains were likely to pass, and especially so because he had been cautioned not to use them, yet it was still'the duty of the servants of the company to use the ordinary care. His great carelessness will not excuse theirs, if they failed to exercise reasonable care after discovering him. His carelessness or infirmity does not change
It is also well settled that after discovering a trespasser or licensee on the track, it is the duty of those operating-the locomotive to give warning of its approach in ample time- and if there be no response to the warning, or anything about the licensee’s actions indicating that he has not heard, or anything unusual in his demeanor reasonably suggesting that he is not in use of his facilities, and that he is making no-effort to avoid the approaching danger, then they must bring the train under control, if possible, and avoid -the injury. It would serve no useful purpose to review our numerous-cases announcing these principles. The eye witnesses do not wholly agree upon these facts, as will be noted from the summary of their evidence hereinbefore set out; and the pertinent inquiry is whether those in control of the engine exercised ordinary care to prevent the injury.
What is “the “ordinary care” to be used by the trainmen-in cases of this character. It is said to be “such care as a. prudent man of requisite skill will take under the circumstances of a particular case”. But who is to decide that, under particular circumstances and conflicting testimony, ordinary care has been exercised? Where there is no conflict of testimony, buttressed by the physical facts, it may be proper for the court to determine the question; but such care is not to be laid down by a fixed rule and is not always easy to measure and ascertain, but, from its variable nature, depends upon the varying circumstances peculiar to each particular case, and it cannot always be determined as a matter of law. Especially is this true where there is a conflict of evidence in the decision of which men might reasonably differ. Hence the peculiar propriety of not withdrawing questions of this character from the jury. Is there a substantial conflict as to the reasonable care exercised in this case? Saxton says defendant was easily discernable from the switch, where he stood, at a distance of 800 feet; but does not know if the men on the engine could have seen him. He says, however, that when the whistle sounded the alarm the engine was 350 feet from defendant, who plainly indicated that he
We are of tbe opinion that tbe evidence in the case' now under consideration is of such conflict that the ordinary care required on the part of the engineman and fireman to avoid injury to plaintiff cannot be presumed to have been exercised as a conclusion of law, and that it was a question for jury determination.
We now come to the release of damages. Plaintiff was in .bed in the hospital at Beckley, where the claim agent came to see him on the 19th of March, 1919, fifteen days after the accident, and the attending surgeon introduced the claim agent as such to plaintiff. The conversation carried on relative to the “company release” was by"writing, the only way by which the deaf mute could communicate except by the use of signs. The notes of this transaction in writing were preserved by the claim agent, and are in evidence, and it may be well to here incorporate the claim agent’s testimony. “When I first went there, Doctor Coleman took me up and introduced me. with this, he says, ‘ Mr. Counts wants to talk to you. He is claim agent for the Virginian Railroad.’ Then I told him, ‘I have been to the place you were hurt. Am sorry to find you this way. How- did it happen] any way’. I don’t think .he made any reply to that only the motions of his hands, and I said, ‘Train came around curve on you before you knew it?’ and he said ‘Yes,’ and I said, ‘How old are you?’ and he said ‘Sixty-two.’ Then I said, ‘Where were you going that morning’, — ‘I was contracting for Corrinne Company. Twenty houses to paint. I had three men for me’. I said, ‘We will take the best care of you we can and pay your bill here ’, and at that time I went down stairs, left him just for a minute, and went downstairs to Dr. Coleman’s office, and I said, ‘I will be back in a few minutes’, and I went down stairs and came back, and I asked him, ‘Where do you live, and have you any relatives?’ and he said, ‘I was raised in Philadelphia, Pa., and left home for Florida in 1886, didn’t hear from them. I left Florida three years ago and come to Mullens’, and I said, ‘Well, you stay
Both of the controlling questions here presented, namely; •that of the use of ordinary care by the servants of defend•ant to prevent injury to plaintiff, and that of the validity •of the release, we conclude, should have gone to the jury. We therefore reverse the judgment and render judgment for the plaintiff on the demurrer to the evidence.
Reversed and judgment here.