Arrowood v. Norfolk & W. Ry. Co

• Decision Date: 02 January 1944
• Docket Number: No. 9608.,9608.
• Court: West Virginia Supreme Court
• Parties: ARROWOOD. v. NORFOLK & W. RY. CO.

32 S.E.2d 634

ARROWOOD.

v.NORFOLK & W. RY. CO.

No. 9608.

Supreme Court of Appeals of West Virginia.

Dee. 12, 1944.

Rehearing Denied Jan. 29, 1945.

Error to Circuit Court, Mingo County.

Action by Dovie Arrowood, administratrix, etc., against Norfolk & Western Railway Company to recover for death of plaintiff's decedent. To review a judgment for defendant based on a directed verdict, the plaintiff brings error.

Judgment reversed, verdict set aside, and new trial awarded.

Randolph Bias, and J. Walter Copley, both of Williamson, for plaintiff in error.

Lant R. Slaven, of Williamson, for defendant in error.

LOVINS, Judge.

This action was instituted in the Circuit Court of Mingo County by Dovie Arrowood, administratrix of her deceased husband, against the Norfolk & Western Railway Company to recover damages for his death. At the conclusion of plaintiff's testimony the trial court, over plaintiff's objection, sustained defendant's motion to strike all plaintiff's evidence, directed the jury to return a verdict for defendant, overruled a motion to set aside the verdict, and entered judgment that plaintiff take nothing by her action. Plaintiff prosecutes this writ of error.

Plaintiff's decedent, Frank Arrowood, was instantly killed by the first section of defendant's westbound passenger train No. 3, while driving an automobile over a public crossing at the Village of Borderland. Although generally known as a westbound train, it actually approached the crossing from a westerly direction due to curvature and location of the railway line. Borderland lies between Tug River on the north and defendant's railway tracks on the south. U. S. Route 52 at the point the accident occurred is south of and generally parallel with defendant's tracks, so that to enter and depart from the village it is necessary to use the crossing on which plaintiff's decedent was fatally injured. The crossing approached from the north, as Arrowood did, consists of three tracks: the eastbound main track, the westbound main track, on which deceased was struck, and a siding for the storage of railway cars. It was marked by a sign reading "Railroad Crossing. Look out for the locomotive, " there being no crossing lights or other safety devices. The general level of the Village of Borderland is approximately seven and a half feet lower than the level of the crossing, and the road leading up to the crossing is located on a rather steep ascending grade. At the time of the accident two concrete piers three and a half to four feet high, each with a base five by nine feet, were located on the northwesterly side of the crossing. Near the piers and immediately west of the road is an accumulation of gravel forty-two inches high, which marks the end of a spur track. The piers and gravel were to the right of decedent as he approached the crossing from the north. The track in the direction from which the train approached the crossing is almost straight for a distance of approximately twelve hundred feet. The viewfrom the road over which deceased was travelling just prior to the accident is obstructed in part by three houses and at certain points by the concrete piers above mentioned, and in some slight degree by the gravel. At a point approximately twenty-six feet from the center of the westbound main line there is a clear view of the track for a distance of twelve hundred feet.

Plaintiff's decedent was a taxi-cab driver, with a station at or near defendant's passenger depot in Williamson, West Virginia, at which he received calls for his services. Shortly after two o'clock a. m. on the day of the accident, he was engaged to transport three persons from Williamson to the Village of Borderland. The three passengers were carried safely into Borderland, the vehicle having been operated in a careful manner. Decedent turned the vehicle and started on his return to Williamson. On arriving at the north-end of the crossing with his front wheels on the ascending grade, he stopped momentarily, immediately resumed motion, and while passing over the crossing was struck by defendant's train on the westbound main track.

It is established by six witnesses, who were at or near the scene of the accident and who testified with varying degrees of certainty, that the whistle and bell of the locomotive which struck deceased were not sounded or rung before the accident. Two of these witnesses were passengers of the taxi-cab who had just alighted from decedent's automobile, two others were travelling in a motor vehicle on U. S. Route 52 about three hundred feet from the crossing, another was standing at or near the crossing on Route 52, with the intention of hailing decedent and riding with him to Williamson, and another was in an automobile parked near the crossing.

No evidence was introduced by defendant, and the only error assigned is the action of the trial court in directing a verdict for defendant, overruling plaintiff's motion to set aside the verdict, and in entering judgment thereon.

It is alleged in the declaration and the undisputed evidence of plaintiff tends to show that defendant was guilty of primary negligence in failing to give the warning signal by bell or whistle as required by statute. Code, 31-2-8. Although the record does not so show, it is evident that the trial court was of the opinion that plaintiff's evidence established that her decedent was guilty of contributory negligence as a matter of law, and defendant in brief and oral argument so contends in this Court. Plaintiff contends with equal vigor that her decedent exercised the necessary care and prudence in using the crossing and that his death resulted solely from the negligence of defendant. It is therefore obvious that the only question to be resolved is whether the evidence establishes as a matter of law that deceased's conduct proximately contributed to the accident which caused his death. The controlling rule of law in determining the question of contributory negligence in cases of this kind is aptly stated thus: "Whether a traveler upon a highway is guilty of contributory negligence in entering upon a crossing is a question for the jury, where the facts are in dispute, or where from the conceded facts two conclusions may be drawn with equal plausibility one of which would make such injured party guilty of contributory negligence, and the other indicate that he was in the exercise of due care." Canterbury v. Director General of Railroads, 87 W.Va. 233, 104 S.E. 597. As indicated above, the facts are not in dispute, and, therefore, we must determine whether the evidence before us so clearly established deceased's negligence that no other plausible conclusion may be reached save that his own negligent conduct proximately caused or contributed to the fatal accident.

Code, 31-2-8, requires that a bell or steam whistle be rung or sounded at least sixty rods from the public crossing. The only evidence before us is that the warning signals required by the statute aforesaid were not given, and the failure to do so constitutes negligence on the part of the defendant. Canterbury v. Director General, supra.

Notwithstanding defendant's negligence, if deceased's contributory negligence is established as a matter of law, plaintiff can have no recovery. Robertson v. Monongahela Power & Ry. Co., 99 W.Va. 356, 128 S.E. 829; Cline v. McAdoo, 85 W. Va. 524, 102 S.E. 218. The duties incumbent upon travellers using a public railroad crossing have been variantly denned in this jurisdiction. It has been held that failure of a person to stop and also look and listen before crossing a railway track constituted contributory negligence per se. Cline v. McAdoo, supra. It is not negligence per se in all cases where a traveller does not stop before passing over a railway track at a public crossing. Bonar v. Baltimore & O. Ry. Co., 91 W.Va. 462, 113 S.E. 766; City of Elkins v. Western Maryland Ry. Co., 76 W.Va. 733, 86 S.E. 762, 1 A.L.R. 198. It has also been held that failure on the part of a traveller to look and listen before passing over a railway track at a public grade crossing amounted to such contributory negligence as to bar recovery. Gray v. Norfolk & W. Ry. Co., 99 W.Va. 575, 130 S.E. 139. See Robertson v. Railway Co., supra; Krodel v. Baltimore & O. R. Co., 99 W.Va. 374, 128 S.E. 824. In some instances the rule has been approved and applied that where required by circumstances, it was the duty of the traveller to stop, as well as look and listen before crossing the railroad track. Maynard v. Chesapeake & O. R. Co., 111 W.Va. 372, 374, 162 S.E. 171; Gulf Transp. Co. v. Virginian R. Co., 111 W.Va. 544, 163 S.E. 7; Lester v. Norfolk & W. R. Co., 111 W.Va. 605, 163 S.E. 434. But failure on the part of a traveler to look and listen before passing over a railway track does not in every instance show lack of ordinary care as a matter of law. Morris' Adm'x v. Baltimore & O. R. Co., 107 W.Va. 97, 147 S.E. 547, 549. "The duty of the decedent to look and listen depended on whether 'it would have availed him, had he looked and listened.' Whether decedent would have comprehended the danger of the situation, had he looked and listened was a jury question." Morris v. Railroad Co., supra.

It is without dispute that decedent stopped his vehicle before he attempted to pass over the railway tracks. It is presumed, there being no evidence to the contrary, that decedent looked and listened, and we cannot say that he did not do all that the law required him to do to avoid the fatal accident. Carnefix v. Kanawha & M. R. Co., 73 W.Va. 534, 538, 82 S.E. 219. The deceased had the right to assume that the statutory warning signals would be given, but such failure did not excuse him from exercising ordinary care, and taking the necessary precautions for his safety. Canterbury v. Director General, supra; Gray v. Railway Co., supra.

The undisputed fact that plaintiffs decedent stopped the automobile just before attempting to cross the railway track,...