Chesapeake & Ohio Ry. Co. v. Elk Refining Co., 6158.

• Decision Date: 13 December 1950
• Docket Number: No. 6158.,6158.
• Parties: CHESAPEAKE & OHIO RY. CO. v. ELK REFINING CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

36 ALR 2d 329, 186 F.2d 30 (1950)

CHESAPEAKE & OHIO RY. CO. v. ELK REFINING CO. et al.

No. 6158.

United States Court of Appeals Fourth Circuit.

Argued November 17, 1950.

Decided December 13, 1950.

Bert H. Early, Huntington, W.Va. (C. W. Strickling and Fitzpatrick, Strickling, Marshall & Huddleston, all of Huntington, W.Va., on the brief), for appellant.

J. Campbell Palmer, III, Charleston, W. Va., for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

These are cross appeals in a railway crossing accident case. Plaintiffs in the court below were the Elk Refining Company, one of whose gasoline tractor-trailer units was struck and damaged at a railroad crossing, and the Fidelity-Phenix Fire Insurance Company, the insurance carrier on the damaged vehicle. The defendant was the Chesapeake & Ohio Railway Company, one of whose locomotives caused the damage in backing across the crossing. The case was heard by the District Judge without a jury and judgment was entered in favor of the plaintiff for the sum of $7,846.99, which includes $4,930.19 as the value of the trailer that was completely destroyed, less an allowance for salvage, and $2,916.80 for the cost of repairing the tractor, which was badly damaged but not beyond repair. Both sides have appealed. Defendant complains because of the finding of liability, plaintiffs because there was not included in the award special damage suffered from loss of use of the vehicle or any allowance on account of interest prior to the trial, which was had approximately two years after the collision.

On the question of liability, we do not think that the findings of the trial judge should be disturbed. The accident occurred at a blind crossing, where an industrial siding branches off from the line of the defendant railway and crosses U. S. Highway No. 61 near Marmet in Kanawha County, West Virginia. The evidence shows that the crossing is an exceedingly dangerous one, as the railway track on both sides of the highway is in a cut and the highway on both sides of the railway track is likewise in a cut, so that engines and cars approaching on the track cannot be seen from cars traveling the highway nor can cars on the highway be seen from the engines on the track. The track, moreover is so imbedded in the highway that it cannot be seen by those driving cars approaching from the west until they are very near to it, and the only crossing sign giving notice of its presence is a crossbuck sign 50 feet to the east of the crossing and on the left side of the highway as one approaches the crossing from the west. No other signs had been erected at the crossing by the defendant although it was required by statute to erect and maintain suitable signs and the manual of the American Association of Highway Commissioners required crossbucks to be on both sides of a grade crossing, at a point 15 feet from the nearest rail, except on minor spur tracks where a member of the train crew would guard the crossing during its use.

At the time of the accident the tractor-trailer unit was approaching from the west when it was struck by a locomotive backing out of the blind crossing from the north. No trainman was sent ahead to guard the crossing and the driver of the tractor-trailer testified that he heard no crossing signals until just before he was struck. He says that he was proceeding carefully and had slowed down to around 15 or 20 miles an hour (later estimated to be 23) when he saw the crossbuck sign ahead of him and was looking for the crossing but did not see it until within forty or fifty feet of the track; that he then saw the engine bearing down from the left and so close upon him that his only hope of safety lay in speeding up and trying to get across the track, as he was too near to stop in time to avoid a collision; and that he did speed up and had almost succeeded in clearing the track when struck by the locomotive.

A statute of West Virginia, Code, 17-19-13a, required trucks hauling gasoline to stop at all railroad crossings and made failure to do so prima facie evidence of negligence.

The trial judge found the defendant guilty of negligence and exonerated the driver of the tractor-trailer of contributory negligence, finding the facts specifically in the judgment, and setting forth his reasons in a memorandum opinion as follows:

"I find as a fact that the defendant was negligent in the operation of the train at this crossing. The acts of negligence that I find were: failure to use a flagman to warn traffic of the approach of this train, in view of the peculiarly dangerous character of the crossing, and the fact that it is a spur track and not a main line; and further, the defendant was negligent in not maintaining a crossing signal which would sufficiently apprise the public that the crossing was there. And I find as a fact that the driver of plaintiff's truck was not contributorily negligent, in view of all the circumstances of this case, and of the obscurity of the track when approaching the crossing from the west. I find that notwithstanding the statute which requires a truck hauling gasoline to stop before crossing a railroad track, that since the driver was not familiar with this crossing, and since an ordinarily careful and prudent person wouldn't be required to observe that it is a crossing until he gets very close on it, that the driver did not have time to bring his vehicle to a stop after, in the exercise of reasonable care, he saw that he was approaching this crossing."

We think that the evidence in the case amply supports these findings of the trial judge, who was thoroughly familiar with the locality in which the accident occurred and had the advantage of seeing and hearing the witnesses. Certainly there is nothing in the record which would justify this court in reversing them as clearly wrong.

We think, however, that the trial judge was in error in limiting the award to the value of the trailer, less salvage, and the damage to the tractor without awarding anything for the special damage from loss of use or for interest. With respect to the special damage, it appears that the trailer was almost brand new, having been used for only three days and driven only 1,400 miles. There is nothing to show that its market value at the time of the accident was less than what had been paid for it only a short while before; and the insurance company made settlement under its policy on this basis. It had insured the trailer for $5,450, which was the purchase price less $30.19, and paid under its policy the full face amount thereof less a $50 deductible allowance and $600 salvage received from the wreck of the trailer. The amount allowed for the tractor was the expense of repair and for the trailer the cost less salvage, with no allowance whatever for the special damage for loss of use, although it appeared from uncontradicted evidence that a trailer in replacement and the repaired tractor were not available to take the place of the wrecked unit until sixty days had elapsed and that in the meantime it had been necessary to hire another unit at an expense of $765.64.

We think that the expense to which the refining company was put in hiring another tractor-trailer unit to take the place of that which had been damaged until the tractor could be repaired and another trailer obtained should have been allowed as an element of damages. It was certainly damage which the Elk Refining Company sustained resulting from the wrecking of its tractor-trailer and recovery therefor must be allowed if that plaintiff is to be made whole for the injury it has sustained. The right to recover such special damage resulting from injury to property, where the damage is established with reasonable certainty, as it is here, is well established by authority; and rental reasonably and necessarily paid for the use of other property to take the place of that which has been damaged, until it can be repaired or replaced, is a fair measure of such special damage. See A. Mortellaro & Co. v. Atlantic C. L. R. Co., 91 Fla. 230, 107 So. 528; Conley v....