Belcher v. Norfolk & W. Ry. Co., 10680

• Citation: 140 W.Va. 848,87 S.E.2d 616
• Decision Date: 27 July 1955
• Docket Number: No. 10680,10680
• Court: Supreme Court of West Virginia
• Parties: Lillie Beil BELCHER, Administratrix, v. NORFOLK AND WESTERN RAILWAY COMPANY et al.

Page 616

87 S.E.2d 616

140 W.Va. 848

Lillie Beil BELCHER, Administratrix, v. NORFOLK AND WESTERN RAILWAY COMPANY et al.

No. 10680.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 1955.

Decided May 24, 1955.

Dissenting Opinion June 2, 1955.

Rehearing Denied July 27, 1955.

Syllabus by the Court.

1. A conflict in the evidence adduced in an action for death by wrongful act relating to the alleged negligence of the defendant, in the absence of facts or applicable principles of law barring recovery, requires that the question of negligence be submitted to a jury.

2. In an action to recover damages for death by wrongful act, in the absence of proof establishing contributory negligence of plaintiff's decedent as a matter of law, the question of such negligence is for jury determination.

3. 'The doctrine of the last clear chance implies a sufficient interval of time for both appreciation of the dangerous situation and effective effort to relieve it.' Juergens v. Front, 111 W.Va. 670 .

4. 'If occupants of automobile negligently awaited result when motor stalled on railroad crossing, their negligence, concurring with railroad's to last moment, would eliminate last clear chance doctrine.' Moore v. Atlantic Coast Line R. Co., 201 N.C. 26 .

Wade H. Ballard, II, Leon P. Miller, Welch, for plaintiff in error.

J. Strother Crockett, Crockett & Tutwiler, Welch, for defendants in error.

LOVINS, President.

This action was brought in the Circuit Court of McDowell County by Lillie Bell Belcher, administratrix of the estate of Garrett Hiram Belcher against the Norfolk and Western Railway Company and G. D. Spangler, to recover damages for the death of her husband, caused by a railway crossing accident which occurred on December 14, 1952.

The plaintiff introduced proof and rested her case. At that time the defendant moved to strike the evidence from the consideration of the jury and to direct a verdict for the defendant. This motion was overruled. The defendants then introduced their proof and rested their case and again moved the court to strike the evidence and direct a verdict for the defendants which motion was likewise overruled.

The trial court then submitted the case to the jury, which deliberated for approximately four hours and reported their inability to agree. Whereupon, the court called the jury back into court and directed that it find a verdict for the defendants. In accordance with such direction, a verdict was returned for the defendants, and after overruling a motion to set aside such verdict, judgment was rendered thereon. This writ of error is prosecuted to such judgment.

There are several basic questions presented by this record: (a) Were the defendants guilty of negligence? (b) Was the decedent guilty of contributory negligence? (c) Do the facts in this case permit the application of the doctrine of last clear chance? A decision of these questions will dispose of the case on the present record, although there are other assignments of error made by the plaintiff relative to the refusal and giving of instructions and the rejection and admission of certain evidence.

The accident occurred about 11:30 a. m. on the date heretofore mentioned at the village of Big Four in McDowell County, West Virginia, on a road crossing of the main tracks of the Norfolk and Western Railway Company. There was a slight snow on the ground at the scene of the accident. The railway tracks are straight for approximately 1,650 feet, with a down grade of .25 of 1%, in the direction from which the train approached. On the north side of the tracks there were several buildings; on the south side there were other buildings, mainly used as residences, as well as a coal tipple.

The automobile was a four door sedan driven by the decedent's son, who was also killed in the accident. The decedent was riding on the right side of the of the automobile in the front seat. Another passenger was sitting between the decedent and the driver. They drove onto the crossing from the north side and for some reason the motor of the automobile stopped. While the driver of the automobile was attempting to start the motor by pressing on the starter, the automobile was struck by corporate defendant's passenger train number 15, moving in a westerly direction. The automobile was thrown to one side of the tracks, caught by the rear by the train and dragged some 300 feet. The train was stopped at approximately 600 feet. It consisted of a locomotive and a number of cars and weighed approximately 1,112 tons.

The track over which the train passed was straight as above noted for a distance of approximately 1,650 feet.

The engineer of the train, likewise a defendant, testified that the speed indicator on the locomotive he was driving showed that the train was traveling 40 miles per hour.

The witnesses for the plaintiff testified that they did not see the train approach. Several witnesses testified that no whistle was blown nor bell rung. On the other hand, the defendants' witnesses testified that they were keeping a lookout and that the automobile was driven onto the crossing too close to permit the train to be stopped in time to avoid the accident. There was some proof on the part of the plaintiff that the engineer of the locomotive was not looking ahead, although the engineer testified to the contrary. The fireman, engineer and several other persons testified that the whistle was blown and the bell rung before they reached the crossing and that a whistle post was located 800 feet east of the crossing.

The accident resulted in the death of Garrett Hiram Belcher, the decedent, as well as the death of his son, James Cecil Belcher, as above stated, who was the driver of the automobile. William Edward Lester, who was likewise riding in the front seat in the middle, was injured. Two small boys riding in the rear of the automobile were not injured.

It is contended by the plaintiff that there was a conflict of testimony, with respect to the ringing of the bell and blowing of the whistle; that there is likewise conflict as to how long the automobile was on the crossing before the accident occurred. The witnesses for the plaintiff say that it was on the crossing from 28 to 30 seconds before the train struck it. Some of the witnesses for the plaintiff say that the automobile was not on the crossing until the locomotive was between 200 and 150 feet from the crossing. The trial court was of the opinion that the plaintiff was contributorily negligent and based his direction to the jury to find a verdict for defendant on that opinion.

The record in this case has been examined with care. In this case involving the law of railroad crossings, we first should determine the character of the crossing where the accident occurred, in order to ascertain the degree of care, if any, owed by the defendant to the plaintiff.

In Huff v. Chesapeake & Ohio Ry. Co., 48 W.Va. 45, 35 S.E. 866, this Court held that a railroad company was not liable to a person using a railroad track for his own convenience elsewhere than at a public crossing and that the statute did not require the blowing of a whistle or ringing of a bell to apprise such person of the approach of the train. The statute requires warning signals at a place used as a crossing, though there is no formal order of dedication or acceptance of dedication, or the establishment or recognition of a crossing by municipal council. Ray v. Chesapeake & Ohio Ry. Co., 57 W.Va. 333, 50 S.E. 413. Melton v. Chesapeake & O. R. Co., 64 W.Va. 168, 61 S.E. 39, follows Huff v. Chesapeake & Ohio Ry. Co., supra, and holds that there is no liability on a defendant railway company in the absence of gross and wanton negligence. Another case, Melton v. Chesapeake & O. Railway Co., 71 W.Va. 701, 78 S.E. 369, in substance holds that where there is an invitation to the public to use a crossing and it is so used, the employees should be cognizant of such use and that the continued use by the public amounts to an invitation of such use and imposes upon a railway company the same degree of care as that required at a public crossing. See Jones v. Virginian Ry. Co., 74 W.Va. 666, 669, 83 S.E. 54, L.R.A.1915C, 428. '* * * In order to impose on a railway company the duty to treat a place as a public crossing, those who use it as a crossing must do so under legal right or at the invitation of the company. Mere license or permission to cross the tracks of a railway company is not equivalent to an invitation.' Ross v. Kanawha & M. Ry. Co., 76 W.Va. 197, 202, 85 S.E. 180. 'A railway company's invitation to the public to cross the railroad at a place not a public crossing charges the company with the same degree of care as the law imposes at a public crossing.' Stike v. Virginian Ry. Co., 114 W.Va. 832, 174 S.E. 418. See Daugherty v. Baltimore & Ohio R. Co., 135 W.Va. 688, 707, 64 S.E.2d 231, wherein this Court distinguishes between a farm crossing and a public crossing. In 3, Elliott on Railroads, Third Edition, § 1620, the writer distinguishes private or farm crossings from public crossings. An interesting discussion of the care required on the part of a railroad company at crossings used by the public will be found in 3, Elliott on Railroads, § 1636 et seq. Code, 31-2-8, requires that a bell or steam whistle be placed on a locomotive engine and that the same be 'rung or whistled by the engineer or fireman, at a distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling for a time sufficient to give due notice of the approach of such train before such street or highway is reached, * * *.'

The record herein does not show any formal dedication. The exhibits filed by both plaintiff and defendants do not show the existence of any warning board at the crossing where the accident occurred. But the record does show that the railway company had used some kind of...