Slaven v. Baltimore &. 0. R. Co

• Decision Date: 21 November 1933
• Docket Number: No. 7650.,7650.
• Citation: 171 S.E. 818
• Court: West Virginia Supreme Court
• Parties: SLAVEN . v. BALTIMORE &. 0. R. CO.

171 S.E. 818

SLAVEN .

v.BALTIMORE &. 0. R. CO.

No. 7650.

Supreme Court of Appeals of West Virginia.

Nov. 21, 1933.

Syllabus by the Court.

1. While it is the duty of a railroad company to announce the arrival of its train at the station to which it has contracted to carry a passenger, and to discharge him safely, yet the fact that the company neglects to make such announcement does not justify a passenger in attempting to alight from a vestibule floor fifty-one inches above the station platform, though the train at the time was not moving.

2. Although a railroad company may be guilty of negligence, such as failure to announce within a passenger's hearing the arrival of the train at the destination to which it contracted to carry him, the passenger cannot recover for personal injuries incurred by him in attempting to alight from the train if he is guilty of contributory negligence proximately causing his own injury.

3. Where a passenger undertakes to alight from a railroad coach by jumping or swinging down from a vestibule floor fifty-one inches above the station platform, he assumes the risk of danger consequent upon his conduct which is the proximate cause of injury which ensues, and he cannot recover.

4. A common carrier is not an insurer against the consequences of rash conduct of a passenger.

5. A carrier is not responsible for the consequences of negligent or lawless acts of third persons not under its control, which conduct could not reasonably be anticipated by the carrier.

6. "Contributory negligence becomes a question for the court when the facts are undisputed and but one reasonable inference can be drawn therefrom." Fields v. City of Spencer, 111 W. Va. 355, 161 S. E 613.

7. Vituperative remarks of counsel in argument before the jury are improper and may be sufficient cause for setting aside a verdict favorable to the party represented by such counsel.

8. An instruction which is indefinite in its meaning should not be given.

Error to Circuit Court, Berkeley County.

Action by Nellie B. Slaven against the Baltimore & Ohio Railroad Company. To review an adverse judgment, defendant brings error.

Judgment reversed, and cause remanded for a new trial.

Harry H. Byrer, of Martinsburg, for plaintiff in error.

E. L. Luttrell and Campbell & Hannis, all of Martinsburg, for defendant in error.

MAXWELL, President.

To a judgment against it for $1,300, based on verdict, in favor of the plaintiff for personal injuries received by her while a passenger on one of its trains, the defendant was awarded a writ of error.

On the night of July 4, 1932, plaintiff, traveling from Philadelphia, Pennsylvania, to Martinsburg, West Virginia, occupied a seat in the rear coach of an excursion train of the defendant returning from Philadelphia to Pittsburgh. The train was heavy, consisting of eleven passenger coaches and one combination car used for passengers and baggage.

When the train stopped at the Martinsburg station about one o'clock in the morning of July 5th, the name of the station not having been announced in the car in which the plaintiff was riding by any member of the train crew, and she not knowing the location but becoming apprehensive that her destination had been reached, started forward through the train making inquiries of fellow-passengers as to whether the train was then at Martinsburg. She did not receive any information until she had proceeded through several cars when she met a man, fellow-passenger, in a vestibule of one of the cars. He informed her that the station was Martinsburg. She testified: "I announced: 'This is my station, ' and that I had to get off. Just as I said that, the train blew. He asked me, when I said I had to get off, he began opening the door, and asked me If I could jump. * * * I said I would try." He opened the door for her, and, without the floor board's being raised so she could descend the steps, she left the car. She said in testimony: "I grabbed the rail with my right hand and eased myself down the best I could." The floor of the car was fifty-one inches above the station platform. There was but little light outside the car--the plaintiff in her testimony referred to the semi-darkness, but in the declaration it is averred that it was "very dark." On the inside of the door near its top there was a notice which read: "Passengers should not stand on the platform and must not open vestibule doors." The rays of an electric light shone upon it, though she says she did not see it. The result of her descent was serious injury to her left ankle.

A rear door of the second coach from the front was opened for the discharge of passengers at Martinsburg, and two passengers left the train. The conductor stood there to render assistance. Owing to the fact that the engine took water at that station, the train remained standing about six minutes. It had not started when plaintiff alighted.

Because of heavy duties, the conductor assigned to the brakeman the task of examin ing and of taking up or punching tickets of passengers in the three coaches at the rear of the train. The plaintiff testified and the brakeman admitted that he examined and punched her ticket soon after the train left Baltimore, but that he did not take it. She also testified that while he was looking at her ticket she asked him what would be the time of the arrival of the train at Martinsburg, and that he asked her if she would be getting off there, to which inquiry she replied in the affirmative; that when he handed the ticket back he told her the train would be due at Martinsburg at one forty but might be a little late because they were following a regular passenger train. The brakeman testified that the destination of most of the passengers was Pittsburgh, and that he did not take plaintiff's ticket because he did not notice that the destination indicated thereby was Martinsburg. He denied that she asked him the time of arrival at Martinsburg, or that she told him that she would get off there, or that he inquired of her whether Martinsburg was her destination.

The plaintiff takes the position that it was negligence on the part of the railroad company to fail to announce her station and in failing to provide her a reasonably safe place to alight, and that such negligence was the proximate cause of her injuries, provided she, in undertaking to alight at the time and place she did, acted as a reasonably careful woman would have acted under the circumstances, and that the questions involved were for jury determination as issues of fact.

It is the position of the railroad company that its failure to make announcement in the car in which the plaintiff was riding of the arrival of the train at Martinsburg was not the proximate cause of the plaintiff's injury; that the unauthorized, unanticipated and negligent act of an intermeddler (the stranger who opened the car door for the plaintiff) intervened; that the plaintiff was guilty of contributory negligence; and that under the state of facts presented by the evidence, it was the duty of the trial court to direct a verdict for the defendant.

We are of opinion that the trial court should have directed a verdict for the defendant as requested. Several propositions combine to impel us to this conclusion.

In our opinion, the defendant's negligence in failing to announce in the coach in which plaintiff was riding that Martinsburg was about to be or had been reached was not the proximate cause of the injury of which the plaintiff complains. For its failure so to announce the station, the defendant would have been liable to the plaintiff in damages if she had been carried beyond her destination, but we do not think it could reasonably have been anticipated that any passenger would violate the company's conspicuously displayed warning to passengers not to openvestibule doors, and would undertake to alight by jumping or swinging down from the floor of the vestibule in the darknesses this woman did. The thing which happened was not a natural and probable consequence of the failure to make announcement of the station. In plaintiff's behalf, there is cited the following statement from 22 Ruling Case Law, page 187:

"Where a railway company fails to stop its train at the usual place for a passenger to alight, it must assume that he will, if he thinks he can properly do so, endeavor to get off, and if he is injured in getting off, the failure to stop the train is the proximate cause of the injury."

That statement is based on the case of Martin v. Southern Railway Company, 77 S. C. 370, 58 S. E. 3, 122...