Bowles v. The Chesapeake

• Decision Date: 05 February 1907
• Citation: 61 W.Va. 272
• Parties: Bowles v. The Chesapeake & Ohio Ry. Co.
• Court: West Virginia Supreme Court

61 W.Va. 272

Bowles

v.The Chesapeake & Ohio Ry. Co.

Supreme Court of Appeals of West Virginia.

Submitted January 10, 1907.

Decided February 5, 1907.

1. Railroad Crossing Accidents Negligence per sc.

It is negligence per se to back a train on a dark night over a public railroad crossing without warning, by blowing a whistle or ringing a bell or guard or light on the advancing reversed car. The company must adopt some means to warn travelers of danger, such means as will be equally efficient as the bell or whistle warning in the case of an advancing unreversed train. The precaution must suit the circumstances and be adequate under the circumstances, (p. 273.)

2. Railroad Crossing Reaching by Walking on Track.

Though one reach a imblic crossing over a railroad by walking on the right of way between tracks, though not between the rails, this does not deprive him of the benefit of the safeguards demanded of the company for a person while crossing the railroad on such public cro&sing. When on the crossing he is entitled to such safeguards, no matter whence he came or how he reached the crossing, (p. 278.)

Error to Circuit Court, Kanawha County.

Action by Rushia A. Bowdes, administratrix, against the Chesapeake & Ohio Railway Compjany. Judgment for plaintiff, and defendant brings error.

Affirmed.

Simms, Enslow & Alderson and R. M. Baker, for plaintiff in error.

S. D. Littlepage and Payne & Payne, for defendant in error.

Brannon, Judge:

John H. Bowles was killed by a train of the Chesapeake and Ohio Railway Company, and his widow and administratrix, Rushia A. Bowles, having recovered a judgment against the company for $6,500 damages, the company appeals.

Bowdes and wife on a dark night, 19th January, 1904, were walking on the railroad right of way going to a restaurant at Lewis Crossing, which was a crossing of a public road over the railroad, Bowles walking not on the track, but in a space of twelve feet between two tracks. Bowles thus walked a quarter of a mile. The restaurant was on the public highway some fifty feet from the railroad track. The highway crossing was thirty feet wide. When Bowles got to the crossing he attempted to cross the railroad track, when he was struck by a train composed of a locomotive and caboose, which was backing across the highway. A vital question in the case is whether Bowles when struck was within the limits of the public road crossing; for if he was not, he had no right to be there, and the railroad company was not bound to resort to care and signals to warn Bowles of danger, as he was a trespasser, not entitled to such warnings, and could recover only for gross negligence. Huffy. C. di 0. Ry. Co., 48 W. Va. 45. But if he had reached the crossing and was within its limits, a vastly different rule applies, as Bowles would then be lawfully on the track in effort to cross. At crossings surely neglect of the company to adopt reasonable means to avoid injury to travelers is actionable negligence. One who is himself without fault, injured at a crossing, and whose injury may be fairly charged to the negligence of the company, has right to recovery. Ray v. Railway, 57 W. Va. 333. Was Bowles when struck within the limit of the crossing? Here the evidence is squarely conflicting. Several witnesses swear that he was struck within the road limit, and dragged on the ground some distance, while the conductor and brakeman say he was struck outside the road limit. The fact that he was struck inside the crossing seems confirmed by the fact that the ground seemed swept as if by the body being dragged. Another decisive fact is, that the blood and hair of Bowles were on the rail of the track inside the crossing. A vital question of fact before the jury was whether Bowles was struck inside the limit of the crossing; it was a question of fact and depended on weight of evidence and conflicting evidence. It is hardly necessary to say that a jury is the judge here. We are bound to take the truth to be that Bowles was killed on the highway crossing, under the verdict. Otherwise we would be acting the jury. Finding that Bowles had reached the crossing, we must inquire whether the company did those things required of it by law. If it did not, it is chargeable with neglect. The Code demands

that the whistle be blown or the bell on the locomotive sounded at least sixty rods from a road crossing. Its omission is negligence. Beyel v. Railway, 34 W. Va. 538. This engine and caboose were standing 280 feet from the crossing. Evidence for the defense says that wdien starting to back over the crossing, three sharp whistles were blown. It is not claimed that any more sounds were made. When they were sounded another large train was passing, likely drowning the three wdiistle sounds. The statute does not say that the sound shall be kept up the whole sixty rods; but it does negative the idea that three short blasts will answer, as it says, "and be kept ringing or whistling for a time sufficient to give due notice of the approach of such train before a street or highway is reached." The very fact that the distance was so much less than sixty rods would seem all the more to require the warning kept up till the crossing was reached. Can it be said that the company was released from continuing the warning over the whole 280 feet by the fact that the blasts were sounded? It cannot be said that as the train wras not distant sixty rods, the statute does not apply to the case. The statute demands this wTarning before crossing. The mere fact that the train has not that distance to go before reaching the crossing does not absolve it from adopting the warning for such part of that distance as is to be passed over. The train need not go back sixty rods to blow; but it must give the traveler the benefit of the safety-warning for such distance as is available. So, taking the defence's evidence I do not think it fairly complies with the demand of the law. The short blasts, and no further sound, were not a compliance with the plain meaning of the statute; did not furnish a warning reasonable under the circumstances, a train backing a very dark winter night. But here we meet conflict of evidence again, as several witnesses say that no whistle was blown nor bell sounded. This again a jury question. Furthermore. Here were an engine and caboose backing in deep darkness over a crossing. Was not great care required of the trainmen? The conductor says that he and the brakeman were on the rear platform of the caboose, with lanterns. The brakeman does not confirm this. He says he was on the end of the caboose next the engine. Here is conflict. But several witnesses swear that both men were on the caboose platform next the engine, not at all on the end which struck Bowles. These witnesses say there was no one on this end of the caboose, and no light on it. There is evidence tending to show that lights called "markers," used to show that the train is the last, which would be on the end of the caboose, had been removed. The brakeman was heard to say so. When a train is backing cars over a street or road in the night, is not diligence demanded? It is much more dangerous than when the engine is ahead. We would be unwilling to say that the statutory warning by bell or whistle would be adequate in the case of a train reversed and backing over a crossing. That is designed for a train having the locomotive in advance. The warning is then on the first car approaching, whereas when the train is reversed, it is quite different. The distant bell or whistle would then furnish little safety. Wood on Railroads, 1517, says: "It is not necessarily negligence on the part of a railroad company to back and switch cars over a highway crossing, nor to make "flying switches' there; it has a perfect right to make such a use of that part of the track, provided proper precautions are taken for the safety of travelers using the crossing. But as a matter of common knowledge such a practice is peculiarly dangerous, and therefore creates a duty of unusual care on the part of the company. There should be abundant warning, not only by the usual signals of bell and whistle, but there should be a flagman near the track, or a watchman on the nearest approaching car to warn travelers who are near. In this as in other cases the exact measure of the company's duty, and the question as to whether it has been discharged, is for the jury; though where a 'flying switch' is made over a crossing without any notice beinggiven, and no watchman or flagman posted to give warning, it may be held as a matter of law that the company was negligent." Elliot on Railroads, section 1162, says that it has often been held that kicking or backing a car over a crossing without warning, and in the absence of a lookout, is negligence per se; that it is a true proposition in many cases, but not always; yet he grants that unless proper precautions are taken, it is negligence, and whether they have been taken is a jury question. This is an important matter for the safety of the public, for the preservation of human...