Waid v. Chesapeake & O. Ry. Co.

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: WADDILL and PARKER, Circuit , and COCHRAN
• Citation: Waid v. Chesapeake & O. Ry. Co., 14 F.2d 90 (4th Cir. 1926)
• Decision Date: 08 June 1926
• Docket Number: No. 2504.,2504.
• Parties: WAID v. CHESAPEAKE & O. RY. CO.

14 F.2d 90 (1926)

WAID v. CHESAPEAKE & O. RY. CO.

No. 2504.

Circuit Court of Appeals, Fourth Circuit.

June 8, 1926.

Ashton File, of Beckley, W. Va., and A. G. Fox, of Bluefield, W. Va. (Joseph M. Sanders, of Welch, W. Va., and W. W. Goldsmith, of Beckley, W. Va., on brief), for plaintiff in error.

Douglas W. Brown, of Huntington, W. Va. (C. W. Strickling, of Huntington, W. Va., and C. P. Nash, Jr., of Alderson, W. Va., on brief), for defendant in error.

Before WADDILL and PARKER, Circuit Judges, and COCHRAN, District Judge.

PARKER, Circuit Judge.

This action was instituted by the plaintiff in error, to recover damages for injuries sustained when an automobile which he was driving was struck by a train of cars of defendant in error, at a crossing in East Raleigh, W. Va. The parties will be referred to in accordance with the positions which they occupied in the court below. At the conclusion of the evidence, the court directed a verdict in favor of the defendant; and the principal point presented by the exceptions is the correctness of this ruling.

The collision in which plaintiff was injured occurred between 7:10 and 7:17 on the evening of April 3, 1925. The crossing in question is where the main highway between Beckley and Bluefield crosses at grade the main line of the Piney Branch of the defendant between Raleigh and Prince. At the crossing, the highway runs approximately north and south, and the railway track, east and west. East of the crossing, the track curves in a northeasterly direction; and at a point 964 feet distant therefrom it is intersected by a spur track leading to the plant of the Blue Jay Lumber Company. The cars which struck plaintiff approached the crossing from the east. There were nine cars; and they were being pushed by a locomotive, which had picked them up on the Blue Jay siding, and was pushing them to the yard west of the crossing. The headlight of the locomotive was burning, but the light therefrom was entirely obstructed by a box car placed immediately in front of it. There was no light and no signaling device on the leading car.

Plaintiff was struck as he drove onto the crossing from the south. He had previously stopped in front of a service station, about 120 feet south of the crossing, and was driving at the rate of 6 or 8 miles an hour. He testified that, when he passed the corner of a building 70 feet from the track, called the Terminal building, he looked up and down the track and did not see or hear any train coming from either direction; that he then started across the track, but, just as the front wheels of his automobile reached the first rail, he was struck by the approaching cars; that the leading car shoved the automobile ahead of it up the track; and that he found himself lying beneath the wreck of his automobile, with his left foot off, his right leg torn and scarred, and wounds on various parts of his body. He further testified that it was so dark at the time of the collision that he could not see the approaching cars and did not see them until he was struck; that there was no light on the cars and the whistle was not blown, the bell rung, or any other warning of any kind given of their approach; that there was an engine standing on a siding just west of the crossing with its headlight burning and the light therefrom shining in a southeasterly direction against the Terminal building; that he looked at this engine long enough to know that it was standing still; and that to pass over the crossing required attention, as it was made of narrow boards "and you had to hit it just right or the wheels would miss it and go down between the rails."

There was evidence on the part of the defendant to the effect that it was not dark; that a train could have been seen for a distance of from 300 to 600 feet; that the whistle was blown at Beaver creek bridge, about 700 feet from the crossing; and that the conductor was riding on the bumper of the forward car, and attempted to warn plaintiff by hallooing and waiving to him. One witness, who testified to seeing plaintiff when he was several feet from the crossing, stated that he did not look to the right at that time.

The learned trial judge seems to have directed a verdict for defendant on the theory that it was light enough for plaintiff to have seen the approaching cars, and that he was guilty of contributory negligence in driving on the track in front of them. On the question as to how light or dark it was, the evidence is conflicting. Plaintiff testified that it was dark, and that he looked and did not see the cars, although in a position where he could have seen them had it been light. The witness Starr testified that it was not "plumb dark" but was getting dusk. Two other witnesses, who drove over the crossing and up to the service station, 120 feet away, just as plaintiff was leaving, testified that they looked down the track in the direction from which the cars were coming and could not see them. It was some time after sunset, and the crossing was in a locality "entirely surrounded by mountains except for the small valley going up Beaver creek." That it was at least beginning to be dark is a fair inference from the circumstances in evidence to the effect that the locomotive pushing the cars and the one standing on the siding had their headlights burning; that the flagman on the cars (who was not on the leading car, but between the third and fourth cars on the opposite side of the train from plaintiff) had a lighted lantern; that the lights of plaintiff's car and of the car which drove over the crossing shortly beforehand were burning; that the lights were burning in a nearby restaurant; and that it was necessary to use a light when searching for plaintiff's foot along the track shortly after the collision.

Two questions arise in considering the exception taken to the direction of the verdict: First, whether there was sufficient evidence of negligence on the part of the defendant to go to the jury on that issue; and, second, whether contributory negligence was so clearly established that reasonable men could draw no other conclusion from the testimony. In passing upon the questions, the law requires that we view the testimony in the light most favorable to the plaintiff, and that we draw every inference therefrom that can reasonably be drawn in his favor. Atlantic Coast Line R. Co. v. McLeod (C. C. A. 4th) 11 F.(2d) 22; Mims v. Reid (C. C. A. 4th) 286 F. 900; Union Pac. R. Co. v. Huxoll, 245 U. S. 535, 38 S. Ct. 187, 62 L. Ed. 455; Chicago, R. I. & P. R. Co. v. Sharp (C. C. A. 8th) 63 F. 532, 11 C. C. A. 337. And, when the evidence is considered in the light of this rule, it is clear that both questions must be answered against the defendant.

It is provided by statute in West Virginia that "a bell or steam whistle shall be placed on each locomotive engine, which shall be rung or whistled by...