Barker v. Ohio River R.R. Co.
| Decision Date | 05 April 1902 |
| Citation | 51 W.Va. 423 |
| Court | West Virginia Supreme Court |
| Parties | Barker v. Ohio River Railroad Company. |
It is the duty of a railroad company to keep its depots and platforms in safe condition and free from dangerous defects for the safety of its passengers, (p. 428).
A person going to a depot to become a passenger has the right to presume that the company has discharged such duty, and is not bound to keep a lookout for defects occasioned by the company's negligence, other than such as ordinary prudence might require for self-protection, (p. 425).
If a passenger while trying to get her children onto the platform of a railroad station, unconsciously steps back into a hole in the platform of which she had no previous knowledge, she is not guilty of contributory negligence, although if she had been walking face forwards, in the direction of such hole, she could have, easily, seen the same. Her walking backwards or failure to look backwards is not negligence when there is nothing to warn her of the company's negligence, and it is not her duty to presume it or look for it. (p. 427).,
A railroad company cannot be excused from gross negligence on its part, although the act of the injured person contributed thereto, unless it be shown in evidence that such, person was guilty of legal negligence, that is, some act of negligence that an ordinarily prudent person would not have been guilty of under the same circumstances, (p. 428).
It is not reversible error to admit in evidence the fact that the plaintiff's two children who were with her at the time of her injury were still living, (p. 432).,
5. Expert Evidence Opinion of Witness.
It is not reversible error to permit a physician to give his opinion as to the cause of a diseased condition of the human body. (p. 432).
Error to Circuit Court, Mason County.
Action by Myrtle L. Barker against the Ohio River Railroad Company. Judgment for plaintiff. Defendant brings error.
Affirmed.
W. R. Gunn, C. E. Hogg, and Sommerville & Sommerville, for appellant.
H. P. Camden and Rankin Wiley, for appellee.
Dent, President:
The Ohio River Railroad Company complains of a judgment of the circuit court of Mason County rendered against it on the 21st day of May, 1900, for the sum of six thousand five hundred dollars in favor of Myrtle L. Barker, plaintiff.
The facts necessary to a determination of this controversy are as follows: On the 2d day of July, 1898, the plaintiff in the day time, went to the depot at Clifton of the defendant for the purpose of taking a south bound train. She had with her two children, one a nursing babe in a baby carriage, the other, four years old, was following behind her. She stepped upon the rear platform of the depot and she and her sister lifted the baby carriage up. She called her other child with the intention of lifting him upon the platform, took a step backwards and fell into a hole twelve inches wide and extending clear across the platform in front of the entrance door, it being occasioned by a plank becoming loose and having been washed out by the March flood. The station agent's attention had been especially called to it, but no pretense had been made to repair it. The company's negligence under the circumstances was as gross as it possibly could be, and the only possible avenue of escape is the customary dernier resort of alleged contributory negligence, and yet numerous errors arc assigned for the consideration of the court.. They are classified under the following four classes, by defendant's attorneys:
1. Does the declaration aver, and does the evidence prove, that the defendant was a common carrier of passengers, so as to charge it with the high duty imposed by the common law upon common carriers of passengers?
2. Was the plaintiff guilty of contributory negligence?
3. Did the court err in refusing to enter judgment for defendant on the special findings of the jury?
4. Did the court err in refusing to grant a new trial?
It is useless to dwell on the first. The objection is that the declaration does not allege in express terms that the defendant is a common carrier. It does allege that it is a railroad corporation operating a railroad from the city of Wheeling to the town of Ken ova. All railroads in this State are common carriers. Section 9, Art. XI, Const.; Railroad Co. v. Tramp't N. Co., 25 W. Va. 324.
On the question of contributory negligence the facts are undisputed, and it depends entirely on the degree of care required of passengers entering upon a railroad platform or depot. Are they in duty bound to keep a lookout for pitfalls or death traps, or have they a right to assume that the depot is in safe repair, and without knowledge of a defect are they only required to use such ordinary care as is required of a person in case such depot is in safe repair? If the defect is apparent and they carelessly walk into it, they are guilty of contributory negligence, on the theory that he who is aware of another's negligence must avoid it if possible. The plaintiff had the right to assume that the platform was reasonably safe for travel and she was not in duty bound to keep a lookout for defects. The portion on which she had momentarily entered was safe and nothing had suggested to her that any portion was unsafe. She was busily engaged in getting her children onto the platform when she stepped backward into the hole. Had she looked she could have seen it, yet she did not know it and there was nothing other than the fact it was there to call her attention to it. In Elliott on Roads and Streets, s. 638, it is said that "Where the plaintiff assuming that a sidewalk was safe and knowing nothing to the contrary, permitted her attention to be momentarily attracted to some children playing in the street and fell into a hole in the sidewalk from which the cover had been removed, she was held not guilty of contributory negligence." In the case of Barry v. Terkildson, 72 Cal. 256, the court says: "The fact that her attention was momentarily attracted in another direction a thing of the most common occurrence to travelers along a street falls far short of that contributory negligence which in law defeats an action, of damages." In the case of Jennings v. Van Schnick, 108 'N. Y. 531, the court says in speaking of a plaintiff who fell in a coal hole in the sidewalk: "She had the right to assume the safety of the sidewalk, and so was not called upon to give attention to her steps, until in some manner warned of danger." In the case of The Brush Electric Lighting Company v. Kelley, 126 Ind. 221, the court in approving the quotation above from Elliott on Roads, says: "She had the right to presume that the sidewalk wTas free from obstructions until her attention was in some way called thereto, and to act upon such presumption." And further on: "We can imagine many circumstances whereby the attention of the pedestrian might be attracted from the sidewalk, which would be sufficient to divert the attention of any reasonable person." Noblesville Gas & Improvement Go. v. Lecher, 124 Ind. 79. Plaintiff had the right to assume that the platform was in a safe condition and act on such assumption until her attention was in some way called to the defect and her attention to her children was such as any reasonable person might be expected to give. In fact, there was no imprudence on her part. If before she stepped backward, she had looked, she would have seen the hole, but she was resting under the justifiable assumption that no such hole existed, and therefore.there was nothing calling upon her to look backward. She had the right to assume that the company had discharged its duty, and that she could give the neces- sary attention to her children without danger of injury from its culpable negligence. In short, she acted as any other prudent person would have done under the same circumstances and with the same knowledge. Fetter on Carriers of Passengers, 130. Because she innocently confided in the company's faithful discharge of its duties towards its passengers she cannot be held guilty of contributory negligence. Trust and confidence is not contributory negligence, although it may be unworthily bestowed. She will not be so confiding hereafter. Her knowledge and experience has increased, but her confidence is shattered and her health destroyed. It is impossible to say that she acted different under the circumstances from what any other person of ordinary caution and prudence would have acted. Of course, there are persons naturally highly cautious and others who have had large experience with the manner in which railroad stations and depots are usually managed and who are continually on the alert for such defects. Such persons cannot be classed with the ordinarily prudent. The law requires an engineer to keep a lookout for helpless trespassers on the track, qualified by consistency with the proper discharge of his other duties. So any lookout for open defects the law may require of passengers must be qualified not only by consistency with the discharge of other duties to other persons, but also with the just assumption of duty discharged on the part of the company. A mother who goes to a depot to take a train with her helpless children cannot be required to neglect proper attention to such children and keep an active lookout for dangerous pitfalls in her way by the negligence of the company, for she has the right to assume there are none until she is in some manner warned of their existence. Her first warning and knowledge of the company's negligence came to her when she fell backwards therein and was too late for her to avoid it. If greater prudence is required of passengers than was exercised by her on this occasion railroad companies should be...
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