Blagg v. Baltimore & O. R. Co

• Citation: 98 S.E. 526
• Decision Date: 25 February 1919
• Docket Number: (No. 3680.)
• Parties: BLAGG . v. BALTIMORE & O. R. CO.
• Court: Supreme Court of West Virginia

98 S.E. 526

BLAGG .
v.
BALTIMORE & O. R. CO.

(No. 3680.)

Supreme Court of Appeals of West Virginia.

Feb. 25, 1919.

[98 S.E. 526]

Rehearing Denied March 27, 1919.

(Syllabus by the Court.)

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 for new trial.

Rankin Wiley, of Point Pleasant, for plaintiff in error.

B. H. Blagg. of Point Pleasant, and Somerville & Somerville, of Grafton, for defendant in error.

RITZ, J. 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 7 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 he 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 he saw Bennett struck by the train on the trestle above referred to. This testimony 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 indis-

[98 S.E. 527]

putably shown. He does not, however, undertake to say how long Bennett had been on the track at the time the engineer discovered him, or before he was struck...