Baltimore & OR Co. v. Green

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: PARKER, SOPER, and NORTHCOTT, Circuit
• Citation: Baltimore & OR Co. v. Green, 136 F.2d 88 (4th Cir. 1943)
• Decision Date: 29 May 1943
• Docket Number: No. 5050.,5050.
• Parties: BALTIMORE & O. R. CO. v. GREEN.

136 F.2d 88 (1943)

BALTIMORE & O. R. CO. v. GREEN.

No. 5050.

Circuit Court of Appeals, Fourth Circuit.

May 29, 1943.

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George S. Wallace, of Huntington, W. Va., for appellant.

Selden S. McNeer, of Huntington, W. Va. (L. E. Woods, Jr. and Campbell & McNeer, all of Huntington, W. Va., on the brief), for appellee.

Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in a railroad crossing collision case. Plaintiff is the administratrix of her deceased husband, Lonnie L. Green, who was riding at the time in an automobile owned and driven by a Dr. Graham, and who with Dr. Graham was killed in the collision. The defendant is the Baltimore & Ohio Railroad Company. There was verdict and judgment for the plaintiff and defendant has appealed. Two questions are raised by the appeal: (1) whether there was error in submitting to the jury the question of defendant's negligence, and (2) whether there was error in charging the jury that there was no evidence of contributory negligence on the part of plaintiff's intestate.

The collision occurred about noon on July 25, 1942 at the Seventh Street crossing of the defendant's Parkersburg-Kenova main line track in the City of Huntington, West Virginia. Decedent was riding with Dr. Graham in the latter's automobile going north on Seventh Street, when the automobile was struck by an eastbound passenger train running at a speed of approximately 31 miles per hour. The evidence leaves no doubt that the whistle of the locomotive was blown for the crossing and that the bell was ringing; but the view of the track towards the west, to a person approaching it from the south, was obstructed by trees and shrubbery except for a distance of only a few feet from the track. As stated by one witness, "you couldn't see it (the locomotive) until it just popped right out into the street." The crossing was of black asphalt, which was in contrast with the white concrete paving of the remainder of the street and was visible from the south for a considerable distance, although the rails at the crossing were sunk beneath the street level. There was no watchman at the crossing and no electric bell or electric flashlight had been provided to give warning signals of the approach of trains, in accordance with the ordinance of the City of Huntington, which provided:

"Warning Signals at Crossings:

"At every railroad crossing in the city the railroad operating over the same shall be required to place a warning consisting of an electric bell, or watchman, or electric flashlight, which shall operate and give warning to travelers upon the highway on the approach of any train, engine or cars".

Dr. Graham, the driver of the car in the collision, was not a resident of Huntington, but of a town in Virginia. He was an uncle of decedent's wife and was visiting in decedent's home on the morning of the collision. He intended to return to his home in Virginia that day and to take decedent with him in his car to a nearby town, where decedent's mother lived. One of the tires of his car needed repairing and he had gone to a service station to have it repaired and was returning from the service station to decedent's home when the collision occurred. Decedent had gone with him to the service station to show him the way, and was presumably directing his course as he drove to and from the service station, as Dr. Graham was a stranger in the city. Decedent lived within a city block of the crossing and was familiar with it, but Dr. Graham was not. The car was being driven at a speed approximately the same as that of the train, i.e. at around 30 miles per hour, and a witness who saw it about 150 feet south of the crossing testified that decedent and Dr. Graham were talking as it passed him. There is evidence that it did not slow up on approaching the crossing and was on the crossing when struck by the train.

We think that the evidence of negligence on the part of defendant was clearly sufficient to take the case to the jury on that issue. The speed of 31 miles per hour at a "blind" crossing on one of the traveled streets of the city was certainly evidence of negligence for the jury to consider, apart from the failure to provide the watchman or signals required by the city ordinance; and, when to this is added the failure to comply with the provisions of the ordinance, there can be no question as to its sufficiency.

It is elementary that a railroad company is required to exercise greater care at a crossing in a city than in the country, where the chance of accident is less. Cavendish v. Chesapeake & O. R. Co., 95 W.Va. 490, 498, 121 S.E. 498, 502; Norfolk & W. R. Co. v. Burge, 84 Va. 63, 4 S.E. 21. And it was a question for the jury to consider whether the operation of the train at a speed of 31 miles per hour over a blind crossing at which no warning signals, other than the crossing sign, had been provided did not constitute negligence. Cf. Morris' Adm'x v. Baltimore & O. R. Co., 107 W.Va. 97, 107, 147 S.E. 547, 551; Norfolk & W. R. Co. v. Holbrook, 6 Cir., 27 F.2d 326.

It is likewise well settled in West Virginia that violation of a city ordinance, which has the force of a statute, is prima facie evidence of negligence where it is the proximate cause of the injury complained of. Meyn v. Dulaney-Miller Auto Co., 118 W.Va. 545, 191 S.E. 558; Oldfield v. Woodall, 113 W.Va. 35, 166 S.E. 691; Tarr v. Keller Lumber & Const. Co., 106 W.Va. 99, 144 S.E. 881, 60 A.L.R. 570. We cannot agree with defendant's contention that the terms of the ordinance were not mandatory, or that any further action on the part of city officials was necessary to impose upon the railroad company the duty of providing at crossings within the city the warning signals which it required. No authority is cited in support of the interpretation for which defendant contends, and we know of none. It certainly could not have been the intention of the legislative body of the city to confer a discretion on the law enforcement officers with respect to requiring compliance with the ordinance when it expressly provided that its requirement should apply to "every railroad crossing in the city".

Equally without merit is the contention that failure to comply with the ordinance cannot be considered a proximate cause of the collision. If a crossing signal with flashing lights and a ringing bell had been operating at the crossing, as the ordinance required, it is hardly probable that Dr. Graham would have driven in front of the approaching train. The failure to provide such signal, therefore, might well have been found by the jury to be, not a mere condition attending the collision, but the producing cause thereof without which it would not have occurred. As said by the Supreme Court of Appeals of West Virginia in Norman v. Virginia-Pocahontas Coal Co., 68 W.Va. 405, 69 S.E. 857, 858, 31 L.R.A.,N.S., 504, "If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury. If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the non-observance of the law." See also 38 Am.Jur. 838.

The case is not at all like Fleming, Adm'r, v. McMillan, W.Va., 26 S.E.2d 8, relied on by defendant, where a motorist drove into a trolley car and the court said that there was nothing in the evidence to suggest that the presence of an ordinary crossing sign would have deterred him. That case falls under the rule that "if the injury would have occurred regardless of the violation of the statute, the defendant is not liable therefor." 38 Am.Jur. 839. On like principle, the case of Jones v. Virginian R. Co., 115 W.Va. 665, 177 S.E. 621, is to be distinguished. There the railway had provided signal lights and a crossing gong which were operating at the time of the accident, and it was held that, under such circumstances, the failure of the railway to cause the word "stop" to be painted on the street, as required by ordinance, could not be held the proximate cause of the accident.

Defendant contends that the question of decedent's contributory negligence should have been submitted to the jury on two grounds: (1) that...