Beyel v. News

• Decision Date: 16 December 1890
• Citation: 34 W.Va. 538
• Court: West Virginia Supreme Court
• Parties: Beyel v. Newport News &. M. v. B'd Co.*(Holt, Judge, absent.)

34 W.Va. 538

Beyel

v.Newport News &. M.

v.B'd Co.

*(Holt, Judge, absent.)

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1890.

Decided December 16, 1890.

1. Railroad Companies Damages Contributory Negligence.

Failure to ring a bell or blow a whistle on an engine, as required by the Code, c. 51, s. 61, is negligence for which a railroad company is chargeable; but this does not excuse a traveler on a highway crossing a railroad track from the exercise of such reasonable care and caution as the law requires, to ascertain whether a train is approaching the crossing.

2. Railroad Companies Damages Contributory Negligence.

The traveler and the company have mutual and reciprocal duties and obligations in such case, and, though a train has the right of way, the same degree of care and diligence to avoid collision is due from both. (Co. v. Stead, 95 U. S. 161).

3. Railroad Companies Damages Contributory Negligence.

It is the duty of a traveler on the highway crossing a railroad to look carefully for an approaching train, and if looking leaves any doubt, or the view is obstructed, he must also listen, before attempting to cross; otherwise, he will himself be guilty of negligence, which will prevent his recovery for an injury received in crossing. Obstructions rendering the view obscure and unreliable call for greater caution on his part.

Simms § Ensloio for plaintiff in error, cited: 73 Pa. St. 504; 70 Wis. 216; 95 U. S. 697; 62 la. 624; 103 Ind. 31; Patt. R'y Dec. § 177; 49 N. J. L. 473; 59 Mich. 257; 28 Ohio St. 340; 39 N Y. 358; 17 Or. 5; 37 Minn. 47; 33 Kan. 416; 64 Wis. 1; 78 Me. 346; 33 Ind. 335; 87 Ill. 454.

Malcolm & Meal, McAllister Blackwood and Gibson § Michie for defendant in error.

Brannon, Judge:

In October, 1887, Conrad Beyel brought trespass on the case in the Circuit Court of Cabell county against the Newport News & Mississippi Valley Railroad Company, to recover damages for bodily injury. He alleges that he was traveling, in a one-horse wagon, along a public highway which crossed the defendant's railroad, and while he was crossing it a locomotive ran against the wagon, whereby the horse became frightened and ran away, overturning the wagon, whereby he was thrown from it to the ground, and seriously injured. A jury awarded him one thousand eight hundred and seventy six dollars damages, and judgment was rendered for that sum, to which the defendant took this writ of error.

A motion by the defendant for a new trial raises an important question. Section 61, c. 54, Code 1887, enacts that a bell or steam-whistle shall be rung or whistled by the engineer or fireman of a locomotive at least sixty rods from the place where the railroad crosses any street or highway, and kept ringing or whistling for a time sufficient to give notice of the approach of a train before the street or highway is reached, and inflicts a penalty of not over one hundred dollars for its neglect; and that the railroad corporation shall be liable to any party injured for damages by reason of such neglect. Under this motion, we must say on the evidence that the defendant did not comply with this requirement, and therefore was guilty of neglect in not performing this duty. But was no duty resting on the plaintiff? 2 Shear & R. Neg. § 463, thus states the law:

"The rights of a traveler on the highway at a point where it is crossed on a level by a railroad are subordinate to those of the railroad company, so far as to require the traveler to give way to any train which is in sight or hearing, though not in such a sense as to give the company right to block up the highway, for its right is only given for the purpose of travel, not of storing its cars or goods. Both parties are, however, equally bound to use ordinary care; that is, such care as a prudent man would usually take under similar circumstances, the one to avoid committing, and the other to avoid receiving, injury."

"But when the statute requires certain precautions against accidents, and its requirements are disregarded, the party suffering damage is not entitled to recover, if he was him- self guilty of negligence which contributed to the damage." 1 Redf. R. R. 586.

It is incumbent on persons using the highway to resort to and use all reasonable efforts on their part to foresee and avoid danger, and to the performance of this duty the law will hold them. A want of such care may be fraught with the most disastrous consequences, not only to themselves, but to the many traveling on railroads, and if to themselves, for want of such care, they must abide the consequences. 1 Ror. R, R. 532.

Failure to ring bell or blow whistle at crossings, though required by law, will not render the company liable, unless that be the proximate cause of the injury, and there be no such negligence by the plaintiff as will prevent his recovery. It is just as important that the plaintiff exercise reasonable care upon his part, when the negligence of defendants consists in the failure to observe a statute, as when it arises from any other omission or neglect. If, by statute, certain warnings or signals are required, and their absence be declared negligence, yet, unless the statute also absolves the injured party from the necessity of caution, and declares that the omission to comply with the statute shall render the company liable, the rule will still be the same with reference to contributive or comparative negligence as if there were no such statutory requirement, and the failure to give the signal will not raise a presumption that such failure was the cause of the injury. 1 Ror. R. R. 531. The statutes giving action for failure to ring bell do not confer such action irrespective of the injured party's own negligence. One whose own fault has contributed to his injury can not take advantage of these statutes to excuse his fault; and the omission to ring a bell is no excuse for the plaintiff's omission to look up and down the track. 2 Shear. & R. Neg. § 482. An omission would call for the public penalty, but the same omission might not call for civil damages.

Then, what is the duty of a person crossing a railroad on a highway? It is universally deemed negligence for any one to cross "without taking any precautions reasonably in his power to ascertain whether a train is approaching. As a general, but not invariable, rule, it is deemed negligence to cross without looking continuously in every direction in which the tracks run, to make sure that the road is clear, and, if looking leaves any doubt, without also listening for approaching trains. If the unexplained evidence shows that the injured person could certainly have seen the train in ample time to avoid it, if he had looked, it is to be presumed he did not look, and he is to be held negligent, as a matter of law." 2 Shear. & R. Neg. § 476. "Not looking for a coming train is not merely an imperfect performance of duty; it is an entire failure of performance." The traveler is bound to stop and look out for trains, fand may not rush heedlessly, nor remain unnecessarily, on a spot over which the law allows engines of fearful power to be propelled. 1 Ror. R. R. 535. Authorities to this effect are too numerous to cite further.

Let us now, in view of these legal principles, turn to the evidence. The plaintiff' was approaching the railroad in a wagon. He had lived within about one hundred yards of the railroad for a considerable period; was familiar with the ground, and railroad crossing; had been accustomed to drive over it once or twice a week. His very familiarity with it, perhaps, lulled him into forgetfullness. He approaches the crossing. He knows it is train time. lie stops to listen seventy five yards from the crossing, but here the hill was high, so as to shut out of view the railroad in the direction from which the train was coming. The hill continues down to the railroad, where there is a cut, but lowers as it approaches the road, though it extends close to the track, and there is a cut, and also at some distance a curve. When he stopped, the train was certainly not at the point where it should have whistled, as he drove in a slow walk down towards the railroad. lie himself says that he did not again stop or listen, but went straight to the railroad. Though the hill extended down to the railroad, yet, at a point ten feet from the center of the track, one could see along the track one hundred and five feet, and, from the center of the track, one could see twice that distance, and then a curve prevents seeing further. If he had stopped and looked, he might have seen the train. Certainly, if he had stopped and listened, he could have heard its approach, for others near there heard it coming nearly a mile away. His hearing was not defective; his sight was not. This was a dangerous place, as he knew, and therefore required all the more caution. Yet, when he gets near the track, he neither stops nor listens, as he himself says, knowing, too, the train was due. The nearest point at which he stopped, or listened was seventy five yards from the track, where his view was cut off, and perhaps the facility of hearing diminished.

In Railroad Co. v. Beale, 78 Pa. St. 504, the line of railroad was obstructed from view of a traveler approaching a crossing in a wagon, and he did not come to a stop before crossing, and it was held to be contributory negligence, defeating recovery for the death of the traveler. Sharswood, J., said: "The evidence of the plaintiff showed a clear case of contributory negligence in the deceased. The crossing at which he met with the injury which resulted in his death was a dangerous one, and, as he was well acquainted with it, there was the greater reason that he should exercise the utmost care and caution by stopping at the railroad before undertaking to pass over. It is very clear, that if he had done so, but for a few minutes, the accident would not have happened." "This evidence," said the judge in his charge, "is...