Kilmer v. Norfolk & W. Ry. Co., 2961.

Decision Date17 November 1930
Docket NumberNo. 2961.,2961.
Citation45 F.2d 532
CourtU.S. Court of Appeals — Fourth Circuit
PartiesKILMER et al. v. NORFOLK & W. RY. CO.

Harry H. Byrer, of Martinsburg, W. Va. (E. L. Luttrell, W. C. Kilmer, and Kilmer & Byrer, all of Martinsburg, W. Va., on the brief), for appellants.

L. I. Rice, of Martinsburg, W. Va., and Forrest A. Brown, of Charles Town, W. Va. (F. M. Rivinus, of Philadelphia, Pa., and Brown & Brown and Forrest W. Brown, all of Charles Town, W. Va., Emmert & Rice and Howard H. Emmert, all of Martinsburg, W. Va., on the brief), for appellee.

Before NORTHCOTT, Circuit Judge, and McCLINTIC and HAYES, District Judges.

McCLINTIC, District Judge.

Lucille Kilmer instituted an action at law in the circuit court of Jefferson county, W. Va., against the Norfolk & Western Railway Company, and James P. Morison, an infant suing by his next friend, also instituted an action at law in this same court against the same defendant. These actions were properly removed to the District Court of the United States for the Northern District of West Virginia for trial. For reasons which will appear in the statement of facts, the two cases were consolidated for trial before one jury. When all the evidence was introduced, upon motion of the defendant the court directed a verdict for it in each action. This direction of verdicts and the refusal to set them aside when so returned are assigned as error by the plaintiff in each case.

The actions were based upon injuries received by each of the plaintiffs when the automobile in which they were riding was struck by a train of the defendant as the automobile was passing over its main track at a public crossing, locally known as Morgan's Grove Crossing in Jefferson county, W. Va.

The plaintiff Lucille Kilmer, about twenty-eight years of age, and the plaintiff James P. Morison, about eighteen years of age, on the 14th day of December, 1928, soon after 4 o'clock in the afternoon, left the home of the father of James P. Morison, Dr. G. P. Morison, in an automobile owned by the plaintiff Morison, for the purpose of going to the town of Shepherdstown, a distance of about 1½ miles, to buy some meat for supper. Plaintiff Kilmer, for a period of eight years prior to this day, had made her home with the Morisons. She had been employed by Dr. Morison as an assistant in his office, but such employment had ceased about a month before the accident. She intended to shortly leave to take a course of training in a city hospital. The Morisons had lived in this home for a period of almost three years. Each plaintiff was thoroughly familiar with the railway crossing in question, and also each one was familiar with the fact that there was a passenger train north bound due to pass over that crossing shortly after 4 o'clock in the afternoon. It is proven that the leaving time of this train at Shenandoah Junction was seven minutes after 4 o'clock, and the leaving time at Shepherdstown was nineteen minutes after 4 o'clock, and that the distance between these two places was 6 3/10 miles, and that this crossing was on this stretch of defendant's railway, and about 1½ miles from Shepherdstown. Plaintiff Kilmer accompanied plaintiff Morison for the purpose of selecting the cuts of meat, for the reason that Mrs. G. P. Morison was not satisfied with the selections theretofore made by him.

It was raining and foggy. The plaintiffs testify that the fog was very dense, and that, when they approached the crossing, it was impossible to see more than 60 feet. The distance from the home of Dr. Morison to the crossing was about 1,000 feet. At the crossing there was a one-end side track, and the switch therefor was about 400 feet south. The plaintiffs were riding in a new car with four doors, and both of them were sitting on the front seat. Morison was driving. The plaintiffs testified that, when the automobile approached the crossing, it was stopped at a distance of a few feet from the side track, and that the front window at the driver's left was opened, and that the plaintiffs looked and listened, and, seeing and hearing no signs or signals of any approaching train, closed the window, and, putting the car into low gear, started across the railway tracks; that, on account of the dense fog, the line of vision was very limited, each placing the distance at about 60 feet; that, when the automobile was on the main track, Morison happened to look up south, and the train was not more than 20 feet away, and he tried to get across, ahead of the train, but failed. The rear end of the automobile was struck, and the plaintiffs were thrown out and badly hurt, and the car was very much damaged. The distance from the bumper, where plaintiffs testified the car was stopped, to the center of the main line of the railway at the crossing, was about 24 feet, and to the same point from where the plaintiffs were sitting in the car was 33 feet. The train of the defendant was a fast passenger one, consisting of an engine and five cars running at a rate of 55 miles per hour, and was six or seven minutes behind its schedule time. There was no scheduled stop between the stations of Shenandoah Junction and Shepherdstown. The road at this crossing was traveled only by a few persons. There was a loading platform facing the side track, and variously testified to be 3 to 5 feet high and 14 feet long, immediately south of the road as it was traveled by the plaintiffs in approaching the crossing and on the side from which the train came. The engineer of the train testified that, when the engine was about 180 feet away, he saw the top of the automobile over the platform approaching the crossing, and that he then gave the distress signal by three short blasts of the engine whistle. It was testified by the plaintiffs that their car was stopped in the rear of this platform, and that it proceeded then onto the crossing from that point. The crossing, as shown by the photographs thereof, was smooth and practically level across the side track and main line. The tracks were only slightly elevated above the level of the road on either side. The south whistling post was 944 feet from the center of the crossing on the main track. There was testimony tending to show that on a clear day, at the point where plaintiffs testified the car was brought to a standstill, a vision of 800 feet could be had of the railway track in the direction from which the train was coming. From the testimony of the witnesses of the plaintiffs, it is reasonable to find that it took a space of time of sixteen seconds for the automobile to start from the point where it had stopped to start again and go upon the main track where it was struck by the train. The windows were all closed from the time that the plaintiffs started until the stop before reaching the side track, when the front one on the left side was lowered for a few seconds. Then it was closed, and the plaintiffs drove on the track with all the windows dimmed by fog and mist.

In order to show negligence upon the part of the defendant, the plaintiffs, in their respective declarations, charge: First, that the defendant failed in its statutory duty to have the bell or whistle on the locomotive rung or blown at a distance of at least 60 rods from the place where the railroad track crosses any public highway, and further failed to keep the bell ringing or whistle blowing for a time sufficient to give due notice of the approach of such train before such highway was reached; second, that the defendant recklessly and negligently drove its locomotive and passenger train at a dangerously high rate of speed over and upon the crossing, and did not keep a proper lookout for the safety of travelers on the highway, and especially the plaintiffs.

The defendant, on its part, denied the allegations of negligence made by the plaintiffs, and claimed that the plaintiffs, by their own negligence in driving upon the crossing in the way and manner shown by the evidence, contributed in a material way to their injuries.

Was there any substantial evidence produced to prove negligence by the defendant as charged?

Were the signals required by statute of the employees of defendant on an engine approaching a crossing given in the way and manner required by such statute?

Seven witnesses, four of whom were not employees of the defendant, testified positively that the whistle was sounded at the proper time and place, and in the proper way, as required by law, for this crossing. Three witnesses testified that each heard the whistle on the engine sounded, but were uncertain as to the exact place where it was so sounded. Only the plaintiffs failed to hear it, and they gave the negative testimony that, if it had been sounded, they would have heard it. One of the employees on the engine testified positively that he rang the bell thereon by hand from a point south of the whistling post to and by the crossing. The plaintiffs also testify that they did not hear it, and think that each of them would have heard it if it had been rung — again, wholly negative testimony. The plaintiffs were in a closed automobile, with the windows all closed, except for the few seconds when it was stopped. The engine in the machine was at least making some noise, and attention was being given to driving. The train was traveling about 80 feet each second. According to plaintiffs' witnesses, it took sixteen seconds to start the automobile and reach the point on the track where it was struck. During this time it was running in low gear, and during this time the train ran 1,300 feet, practically onequarter of a mile. When they stopped, lowered the window of the automobile, looked and listened, as testified by plaintiffs, the train was 1,300 feet away, 350 feet beyond or south of the whistling post, and, when plaintiffs closed the windows and started their car, the time had not arrived and the place had not been reached for the ringing of the bell or blowing of the whistle. It...

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