Virginian Ry. Co. v. Armentrout

• Decision Date: 21 November 1946
• Docket Number: No. 5504.,5504.
• Citation: 158 F.2d 358
• Parties: VIRGINIAN RY. CO. v. ARMENTROUT.
• Court: U.S. Court of Appeals — Fourth Circuit

158 F.2d 358 (1946)

VIRGINIAN RY. CO. v. ARMENTROUT.

No. 5504.

Circuit Court of Appeals, Fourth Circuit.

November 21, 1946.

Fletcher W. Mann, of Beckley, W. Va. (John R. Pendleton, of Princeton, W. Va., and J. O. Atkinson and Walter C. Plunkett, both of Norfolk, Va., on the brief), for appellant.

R. G. Lilly and A. A. Lilly, both of Charleston, W. Va. (W. F. Damron and O. D. Damron, both of Logan, W. Va., on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This case presents the account of an extraordinary accident to a 13 month old baby who strayed from his parent's house to a railroad track 289 feet distant, and was there run over by a passing engine, losing his left arm above the elbow and his right arm above the wrist. Two issues of negligence on the part of the railroad were submitted to the jury: (1) that the engineer failed to give adequate warning of the approach of the engine and (2) that he failed to keep an adequate lookout and to save the child from injury after his presence on the track was observed and there was still time to stop the engine. The jury found a verdict for the plaintiff in the sum of $100,000, and the Railroad Company appealed, alleging that the judge erred in his instructions to the jury and in his refusal to set aside the verdict as excessive.

The evidence in support of the verdict may be summarized as follows: The accident happened in the morning of May 27, 1944. A few minutes before the event, the child was playing in the yard while various members of the family were in a nearby field and in the house which was located on a hill above the railroad track by the side of a public road. The baby wandered down the hill unobserved. When next seen he was in a crawling position on the track at or near the crossing, where boards with composition paving between had been placed. He was a very active and intelligent child. He started to walk at the age of 9½ months and to talk soon afterwards. On several prior occasions when he was close to the crossing in the care of an elder brother he would scream and try to pull away and go back home if an approaching train blew its whistle as it neared the crossing.

At the time of the accident the engine approached the crossing on the single track on a 7 degree curve around a bank 5 feet high to the left of the engineer and on an upgrade of 1 to 1½ per cent. The engine was 106 feet 8 inches long and weighed 915,000 pounds. It was backing with its tender in advance at a speed variously estimated from 10 to 20 miles an hour. The engineer was seated at the cab window on his left side of the engine with his back to the operating controls and brake levers. He was familiar with the crossing. He blew several toots on the whistle to attract the attention of members of his family in a house on a hill 1,500 feet from the crossing and as he passed he waved to them. The engine then passed the whistle post located 1,052 feet from the crossing. Later at a point 300 feet from the crossing the engineer was looking at and waving to persons on top of the bank and continued to do so until the engine was 150 feet from the crossing. The evidence is conflicting as to the giving of signals by whistle and by bell as the engine neared the crossing, but a number of witnesses testified on behalf of the plaintiff that no signals of any kind were then given. All the witnesses, however, agreed that the engine made a loud noise as it approached, which could be heard a long way off.

The engineer was the only person who saw the child on the track. He had a clear view of the crossing as he came around the curve. He said that he then saw an object on the track when the tender was 220 feet away, as disclosed by later measurements, but did not recognize it as a baby until the tender was 191 feet away. Then he saw that the child had his hands upon the track in a crawling position facing the tender. The child did not move. The engineer said that he used sand and made every effort to stop the train but was unable to do so before the end of the tender had gone 40 to 50 feet beyond the child who then lay between the tender and the engine.

The evidence offered by the Railroad as to distances was secured by an investigation and test made by the engineer and fireman and other employees of the Railroad after the accident. They drove the engine and tender to the place and took certain photographs and measurements to determine the distance from the crossing at which an object could be recognized by one in the engineer's seat using a folded newspaper to represent a child. No test, however, was made to ascertain in what distance the engine could be stopped when going at the various speeds testified to by the witnesses.

The evidence on the part of the plaintiff tended to show that the engine could have been stopped after the engineer saw or should have seen the child. There was testimony, as above indicated, that the engineer's attention shortly before reaching the crossing was directed to persons on the bank adjoining the tracks; and that after the accident no sand was found on the track approaching the crossing; and an experienced locomotive engineer expressed the opinion that the engine, going at a speed of 10 to 15 miles an hour, could have been stopped in a distance from 35 to 75 feet and going at the speed of 18 to 20 miles an hour, could have been stopped in a distance from 75 to 95 feet. While there was opposing testimony offered by the defendant in this respect, it is not disputed that there was sufficient evidence to go to the jury on the second issue of negligence above mentioned.

We consider first the contention that the judge erred in charging the jury that the defendant was liable if the jury should find that the engineer failed to give the warning signals required by law, and should further find that this failure was the cause of the accident. There was evidence tending to show that the engineer failed to obey the provisions of Ch. 31, Art. 2, § 8 of the West Virginia Code which provides that a bell or whistle shall be sounded by an engineer or a fireman on a locomotive engine at a distance of at least 60 rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling for a time sufficient to give due notice of the approach of the train. This evidence was denied but an issue of fact was thereby raised. Hence there would have been no error in submitting it to the jury if it were decisive of the controversy; but the attack is directed to the succeeding part of the instruction wherein the jury were told that in order to fasten the liability on the defendant they must also find that the child was of sufficient mental capacity to understand the meaning of such signals so as to get off the track if they had been given. To this phase of the charge the defendant objects, and with good reason, upon the ground that it cannot be supposed that a child of 13 months would have had any understanding in the premises. It is argued that the child was unusually intelligent and on a number of occasions had manifested fear when the whistle of a passing train was blown; but these facts are so unsubstantial that they do not in the slightest way overcome the common knowledge that a baby of 13 months is not equipped with reasoning powers. The judge himself recognized the incapacity of the child, for he instructed the jury, correctly we think, that the child could not be guilty of contributory negligence or at fault in the eye of the law. See Prunty v. Tyler Traction Co., 90 W. Va. 194, 200, 201, 110 S.E. 570; Dempsey v. Norfolk & Western Ry., 69 W.Va. 271, 274, 71 S.E. 284, 34 L.R.A.,N.S., 682; Potts, Adm'r v. Union Traction Co., 75 W.Va. 212, 83 S.E. 918; Schoonover v. Baltimore & Ohio R. Co., 69 W.Va. 560, 566, 73 S.E. 266, L.R.A.1917F, 1, Ann.Cas.1913B, 964; Ewing v. Lanark Fuel Co., 65 W.Va. 726, 65 S.E. 200, 29 L.R.A.,N.S., 487; Nashville,...