Gilkerson v. Baltimore &
| Decision Date | 01 February 1946 |
| Docket Number | No. 9807.,9807. |
| Citation | 41 S.E.2d 188 |
| Court | West Virginia Supreme Court |
| Parties | GILKERSON . v. BALTIMORE & O. R. CO. et al. |
Rehearing Denied Feb. 17, 1947.
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Syllabus by the Court.
1. In an amended declaration containing several counts in an action for the recovery, of damages for wrongful death, each count which jointly charges the duty of the defendants, that such duty was breached by their particular acts which are stated with reasonable certainty, and that the injuries and the damages were caused by their negligent acts or omissions, sufficiently states a cause of action against the defendants, and is good on demurrer.
2. In an amended declaration containing several counts in an action for the recovery of damages for wrongful death, all of which counts are laid jointly against a corporate defendant and other individual defendants, a count which alleges the duty of the corporate defendant, the negligent breach of such duty by it, and injuries and damages which resulted from its negligence, but which does not contain any such allegations as to any of the individual defendants, is demurrable.
3. The joinder of several counts in an amended declaration in an action to recover damages for wrongful death, some of which counts are sufficient, and one of which counts is insufficient, on demurrer, does not vitiate the declaration in its entirety or any of its good counts.
4. In an action for the recovery of damages for wrongful death, a verdict of a jury for entire damages upon an amended declaration which contains a number of good counts and one faulty count, and as to each of which counts a demurrer has been overruled, will not be set aside by the trial court when it is manifest that such general verdict is not founded upon the faulty count.
5. In the trial of an action, when a motion is made to direct the jury to return a verdict in favor of the defendants at the conclusion of the evidence introduced by the plaintiff, which motion, for lack of sufficient evidence, should have been sustained but is overruled, and thereafter the defendants proceed with the trial and introduce evidence in their behalf, the benefit of such motion and the erroneous action of the court in overruling it, are waived by the defendants.
6. The jury is the sole judge of the credibility and the weight of conflicting testimony of witnesses upon controverted issues of fact; and when the testimony in-volving the negligence of the defendants is conflicting with respect to the facts the question of negligence is for the jury.
7. In the trial of an action for the recovery of damages for wrongful death, when the facts which control upon the question of contributory negligence are not disputed, and reasonable men can draw only one conclusion from them, contributory negligence becomes a question of law for the court.
8. In the trial of an action for the recovery of damages for wrongful death, the giving of an instruction based upon a faulty count in an amended declaration which contains other counts which are good, and to which faulty count a demurrer should have been sustained, is erroneous.
Error to Circuit Court, Wayne County.
Action by Henry A. Gilkerson, administrator of the estate of Virgil Ray Gilkerson, deceased, against the Baltimore & Ohio Railroad Company and others to recover damages for death of plaintiff's decedent in a grade crossing collision between automobile in which decedent was riding and named defendant's train. Verdict and judgment for plaintiff, and defendants bring error.
Judgment reversed, verdict set aside and cause remanded for a new trial.
George S. Wallace, of Huntington, and M. J. Ferguson, of Wayne, for plaintiffs in error.
W. R. Price, of Cleveland, Ohio, and Lilly & Lilly and R. G. Lilly, all of Charleston, for defendant in error.
On the night of January 7, 1944, between the hours of eleven o'clock and twelve o'clock, midnight, Virgil Ray Gilkerson, a youth fifteen years of age, while riding as a guest with other companions in an automobile driven by Orville Hall, was killed in a collision between the automobile and a passenger train of the Baltimore and Ohio Railroad Company at a grade crossing in the western section of the City of Huntington, which is lo cated in Wayne County, West Virginia. This action was instituted by the plaintiff, Henry A. Gilkerson, the father of the deceased, as administrator of his estate, against the defendants, Baltimore and Ohio Railroad Company, and Lynn B. Van Lear, the engineer, and Carl J. Williams, the fireman, who were operating the train at the time of the wreck, to recover damages for the alleged wrongful death of his son. The jury returned a verdict in favor of the plaintiff against the three defendants for $10,000, upon which verdict the trial court entered final judgment. To that judgment the defendants prosecute this writ of error.
The collision occurred on Burlington Road, in the City of Huntington, at the point where that public street or highway crosses the main line of the Baltimore and Ohio Railroad Company, which passes between Kenova and Huntington, in this State. The grade crossing on which the train struck the automobile is located 2, 010 feet east of the Huntington flood wall. The tracks of the railroad company are straight for a distance of approximately 3, 200 feet to the west of the crossing and for a distance of approximately 600 feet to the east of the crossing. U. S. Route 60, which, in this part of the city, passes over and along one of its streets known as Piedmont Road, and extends from Kenova to Huntington, intersects with Burlington Road, a street improved or paved with concrete surface, 20 feet in width, about 300 feet south of the crossing.
From the point of its intersection with Piedmont Road, Burlington Road runs almost due north in practically a straight line, and intersects and passes over, in succession, Bradley Road, the railroad tracks, Waverly Road and Auburn Road. Piedmont Road and Bradley Road are located, respectively, about 300 feet and about 30 feet south, and Waverly Road and Auburn Road are located, respectively, about 80 feet and about 800 feet north, of the railroad crossing. In crossing Bradley Road, a few feet south of the railroad tracks, Burlington Road swerves gradually to the east, but this slight change from a straight line to another straight line doesnot affect the visibility to and over the railroad crossing. Piedmont Road and Bradley Road, located to the south, and Waverly Road and Auburn Road, located to the north, of the railroad crossing, are public streets which run east and west. They are parallel with each other and the railroad tracks, and they cross Burlington Road at right angles. Piedmont Road, continuing west from its intersection with Burlington Road south of the railroad crossing, crosses the railroad tracks at a point 3, 223 feet west of the railroad crossing on Burlington Road.
North of the railroad crossing and parallel with the railroad tracks, sections of an abandoned street car line, comprising four iron rails, are imbedded in and extend across the concrete portion of Burlington Road. The northernmost rail of this old street car line is located at a distance of 72.5 feet north of the north rail of the railroad. South of the railroad tracks the surface of Burlington Road is almost level with the top of the railroad tracks. North of the railroad tracks its surface is likewise almost level and on the same elevation as that of the rails for a distance of about 80 feet, at which point the grade descends rather abruptly to a depth of about 15 feet below the elevation of the railroad tracks, about midway between the railroad tracks and Auburn Road. Near the southwest corner of Waverly Road, and approximately 80 feet from the center line of the railroad, is a street light suspended about 19 feet above the surface by a cross-arm on a pole, which cross-arm extends overhead to a point west of the center of Burlington Road. About midway between Waverly Road and Auburn Road, on Burlington Road, there is another light which is also suspended above the surface of the street These lights were equipped with 400 candle power bulbs and were burning on the night of the collision. There is a third overhead street light at the intersection of Burlington Road and Piedmont Road, about 300 feet south of the crossing. Sixteen and one-half feet east of the center line of the concrete pavement on Burlington Road, and about 28 feet from the north rail of the railroad tracks is a silent railroad crossing sign, which is 14 feet in height. At the time of the collision there were weeds, brush, and bushes or small trees along the railroad right of way between Waverly Road and the railroad tracks west of Burlington Road, which extended from a point near the railroad crossing to the west for a distance of several hundred feet and which ranged from four feet to ten feet in height.
From a point in Burlington Road 113 feet north of the north rail of the railroad, the view to the west along the tracks is clear for a distance of 2, 010 feet, or to the flood wall, and from a point in the same road ten feet north of the north rail, the view to the west is clear for a distance of 3, 200 feet. The view to the west along the railroad from various points in Burlington Road between 79 feet and 17 feet north of the railroad tracks extends from 1, 500 feet to 2, 200 feet.
Most of the locations and the distances, set out above, are taken from maps introduced by the defendants, without objection, and the correctness of these maps is not questioned by any of the parties to this action. The locations, distances and conditions, heretofore stated, existed at the time of the collision.
The amended declaration, upon which the case was tried, contained seven counts. The first, second, third, fourth and fifth counts, respectively, allege failure, by the defendants, to operate the train in a proper manner and at a...
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