Auvil v. Western Maryland Ry. Co.

• Decision Date: 28 April 1927
• Docket Number: No. 2595.,2595.
• Citation: Auvil v. Western Maryland Ry. Co., 19 F.2d 30 (4th Cir. 1927)
• Parties: AUVIL v. WESTERN MARYLAND RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

19 F.2d 30 (1927)

AUVIL v. WESTERN MARYLAND RY. CO.

No. 2595.

Circuit Court of Appeals, Fourth Circuit.

April 28, 1927.

Samuel T Spears, of Elkins, W. Va., and J. W. Harman, of Parsons, W. Va. (Spears & Irons, of Elkins, W. Va., on the brief), for plaintiff in error.

Eugene S. Williams, of Baltimore, Md., and E. A. Bowers, of Elkins, W. Va. (Wm. H. Maynard, of Baltimore, Md., on the brief), for defendant in error.

Before PARKER and NORTHCOTT, Circuit Judges, and GRONER, District Judge.

GRONER, District Judge.

This is an action at law, brought by the administrator of Nora A. Auvil, deceased, in the District Court for the Northern District of West Virginia, against the Western Maryland Railway Company, to recover damages for her death, which occurred at the intersection of the defendant's railway tracks and a street in the city of Parsons, W. Va., about 3:30 o'clock in the afternoon of January 31, 1925. The parties will be spoken of as plaintiff and defendant, the position they occupied below.

Defendant's station at Parsons is located about 1,000 feet westwardly from the place of accident. From the station eastwardly the track runs slightly upgrade and on an eight degree curve until near the western end of a bridge and about 300 feet from the point of collision. From the bridge to the point of collision the track is straight. The bridge itself is 250 feet long, composed of three spans, two "deck" and one "through" truss. The "deck" spans are each 50 feet long, and the overhead or truss part is 150 feet long. The bridge has the standard diagonal braces and crosspieces. Fifty feet eastwardly from the end of the truss portion of the bridge is a public street crossing the railroad track at right angles, the track separating the northern from the southern portion of the town.

A little while before the accident Mrs. Auvil and her husband, who lived in the northern portion of the town, had crossed the railroad track into the southern portion for the purpose of paying a visit of sympathy and condolence at the home of a neighbor in that portion of the town. On her way to her friend's home, Mrs. Auvil had complained of a headache and had taken some powders to relieve her pain. After paying a visit — her husband having left somewhat sooner — she started to return, and remarked as she left her friend's house that the train was then at the station. She was then about 250 feet from the intersection. Following the line of the street she walked first westwardly about 175 feet, then turned in a northerly direction on the sidewalk, walking rapidly and with her head slightly bent, and, apparently without noticing the approaching train, was struck and killed just as she was in the act of stepping across the rail on the near side.

After the evidence for both sides had been introduced, the court, on motion of the defendant, gave the jury binding instructions, and it is to have reviewed and reversed this ruling of the court that this writ of error is prosecuted. It is not contended by plaintiff that Mrs. Auvil had not seen the train at the station, or that she was not fully acquainted with the conditions and circumstances under which it was ordinarily operated from that point on through the town, nor is it contended that from the time Mrs. Auvil turned in a northerly direction and approached the track she could not at all times have seen the approaching train, had she looked, and it was admitted in the argument that the overwhelming weight of...