Blagg v. Baltimore

• Decision Date: 25 February 1919
• Docket Number: No. 3680.,3680.
• Court: West Virginia Supreme Court
• Parties: B. H. Blagg, Admr. v. Baltimore & Ohio Railroad Co.

83 W.Va. 449

B. H. Blagg, Admr.

v.Baltimore & Ohio Railroad Co.

No. 3680.

Supreme Court of Appeals of West Virginia.

Submitted February 18, 1919.

Decided February 25, 1919.

1. Railroads Operation Licensee Care Required.

One not in the employ of a railway company, using its tracks as a walk way over a portion thereof which pedestrians are accustomed to use for such purpose, but not at a public crossing, is at most a mere licensee, and such railway company owes to him no higher or other duty than it owes to a trespasses. (p. 452).

2. Evidence Admissibility Res Gestae.

Whenever a statement is made by one under such circumstances that it may be regarded as spontaneous and as the direct result of a transaction to which he was a party, it becomes a part of the transaction itself, and if proof of the fact is material to the inquiry being made such statement will be received in evidence as tending to establish such fact. (p. 453).

3. Railroads Licensee Personal Injury Liability.

A person using a railroad track as a foot path for his own convenience elsewhere than at a public crossing, and injured by a train while so doing, cannot recover damages from the railroad company, unless it be shown that after he was discovered upon the track by the employes or servants of the railroad company they did not use reasonable care to avoid injuring him. (p. 453).

4. Trial Instruction Evidence.

It is error to give an instruction based upon an hypothesis which is not supported by any evidence (p. 454).

Error to Circuit Court, Mason County.

Action by B. H. Blagg, administrator of Raymond Bennett, deceased, against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Rankin Wiley, for plaintiff in error.

B. H. Blagg and Somerville & Somerville, for defendant in error.

Ritz, Judge:

This writ of error is prosecuted to a judgment in favor of plaintiff for damages occasioned by the death of his decedent, Raymond Bennett, caused by the alleged wrongful act of the defendant. Bennett was killed on the 26th day of August, 1913, by being run over on the tracks of the defendant near its station of Point Pleasant. The evidence shows that a north-bound train of the defendant, containing a locomotive, tender, and three cars, just a short distance north of defendant's station of Point Pleasant, ran over the defendant about seven o'clock on the morning of August 26, 1913, and so badly injured him that he died in a few minutes after the accident. As to how long Bennett was on the track before he was struck by this train, as to when he came on the track, what efforts were made to stop it before he was struck, whether or not the engineer saw him in sufficient time to have stopped the train before it struck him, there is no evidence. The testimony for the plaintiff, by one witness, shows that she lived near the railroad track, at the point where the accident happened; that she was in her kitchen eating breakfast at the time she heard the locomotive give quick short blasts of the whistle indicating the possibility of an accident; that she quickly got up from the table and went rapidly to her front door which was just across another room, the door between the kitchen and this room, and the front door, being open at the time, and that when she got to her front porch the train had run over Bennett, and be was still under it; that by the time the train stopped it had passed entirely over his body and left it remaining a few feet to the rear of the train. She does not undertake to state when Bennett got on the track; in fact she did not see him until after he was run over, nor does she undertake to say how far the engine was from him at the time he was discovered. The only reasonable inference that can be drawn from her evidence is that it must have been very close from the fact that she, moving as rapidly as she conveniently could, only crossed the front room of her house from the time she heard the first alarm given until the train had run over him. She does state in her evidence that the train had not slowed down from the time it first began to whistle until she first saw it, or until after it had run over Bennett. Manifestly she could not know whether the train had slowed down before she saw it or not. She does state, however, that the train stopped when the last car had passed just a few feet beyond Bennett's body, and when the engine was just up to a trestle a short distance north of where Bennett was struck. Another witness testifies that he was working at a house near the place of the accident, and that ho saw Bennett struck by the train on the trestle above referred to. This tesimony is denied by the physical facts shown that Bennett's body was south of the trestle at the time it was run over, and at the time it was recovered, and that the train had stopped before going upon the trestle. Manifestly this witness was confused in his statements, and they are not to be relied upon, being in direct conflict with the physical facts indisputably shown. He does not, however, undertake to say how long pennett had been on the track at the time the engineer discovered him, or before he was struck, or what if any efforts were made to prevent his being struck after he was discovered. He does state that the train was running forty to fifty miles an hour at the time he observed it, and his statement in this regard is all of the evidence as to the speed of the train. Another witness who came upon the ground very shortly after the accident observed what he presumed to be the place where Bennett was hit. He found at this point Bennett's dinner bucket with his dinner spilled upon the ground, and also marks of blood and mangled pieces of his clothing and remains. This point, this witness says, was a little bit closer to the trestle referred to than it was to the Point Pleasant station. He says that he stepped off the distance from this point to a point in a southerly direction, at which the plaintiff's decedent would have been observable had he been upon the track, and he finds that plaintiff's decedent could have seen two hundred and sixty-five steps from the point at which he was hit, but he does not undertake to say that the engineer saw him at any such distance, or that he was even upon the track at the time the engine was that distance away. In fact, as before stated, there is no proof in this case as to when Bennett came upon the track, how long he had been upon the track before he was hit by the engine, how far the engine was...