Butcher v. West Virginia & P. R. Co.

• Decision Date: 03 December 1892
• Citation: 37 W.Va. 180
• Court: West Virginia Supreme Court
• Parties: Butcher r. West Virginia & P. R. Co.

37 W.Va. 180

Butcher

v. West Virginia & P. R. Co.

Supreme Court of Appeals of West Virginia.

Submitted June 10, 1892.

Decided December 3, 1892.

1. Railroad Companies Damages Burden of Proof Negligence.

In an action of trespass against a railroad company for injuries received at a railroad crossing by reason of the failure of the defendant to give the signal required by statute, in order that the plaintiff should recover, he must not only prove that the defendant failed to give the signal required by statute, but also that such failure was the proximate cause of his injury.

2. Railroad Companies Damages Negligence Burden of Proof Contributory Negligence.

Where negligence is the ground of the action it rests upon the plaintiff to trace the fault for his injury to the defendant, and for this purpose he must show the circumstances under which the injury occurred, and if, from these circumstances so proven by the plaintiff, it appears that the fault was mutual, or, in other words, that contributory negligence is fairly imputable to him, he has, by proving the circumstances, disproved his right to recover, and on the plaintiff's evidence alone the jury should find for the defendant.

3. Railroad Companies Damages Negligence Burden of Proof Contributory Negligence.

A traveller on a public road must exercise at least ordinary care and caution. No recovery can be had by the plaintiff where his negligence in any degree contributed to the injury received by colliding with a railroad train at a public crossing, unless the defendant, being aware of the plaintiff's danger, and having the opportunity to avert it, fails to use ordinary caution to do so.

J. Brannon § W. W. Brannon for plaintiff in error:

I. Burden of proof as to signal. Yd 111. App. 535.

II. Duties of traveller and railway company at crossings gen- erally. 12 S. E. R. 532; 15 Am. St. Rep. 733 & note, p. 739; 11 Am. St, Rep. 486; 44 Am. & Eng. R. Cases 570; 8 Am. St. Rep. 809; 4 Am. & Eng. Ency. L. 70, 913; Deer. Neg. 252; 2 Beach Railways, 970; Patt. Ry. Ac. § 173 etseq.; 3 Law. R. R, & Pr. § 1189; 2 Wood's R. L. 1301-1332. III. Proximate cause of injury. 12 S. E. R. 532; 4 Am. & Eng. Ency. L. 70, 914, 921, note 7; Digest Vols. 1-35, Am. & Eng. R. Cases, p. 246, §§ 420-423; Part. R. Ac. § 179; Deer. Neg. § 252; 3 Law. R. R. & P. § 1183.

IV. Railway company not liable for injuries resulting from fright of horses. Patt. R. Ac. 152 & cases cited in note 4; Deer. Neg. 252 & note 1; 3 Law. R. R. & P. § 1176; 2 Wood R. L. 1332.

67. M. Chidester and W. B. McGary, for defendant in error cited 17 W. Ya. 191, Syl. 6, 7; 18 W. Va. 579 Syl. 4, 5, pp. 584-5; 19 W. Va. 325, Syl. 14; 27 W. Va. 146, Syl. 7, 8, 9; 16 W. Va. 307; 30 W. Va. 228, 238, 239, 241; 34 W. Va. 538, 545, '546; 13 S. E. Rep. 1104, § 43; Am. & Eng. R. R. Cases, Dig. Vols. 1-35, p. 243, §§ 374, 376 and 877; Patt. R'y Ac.§§ 55, 148, 150, 159, 161, 164, 171, 175; Am. Dig. (Annual 1891) 3803, § 418; 2 Beach R.p. 970, §§970, 1009; Pierce R.348; Beach R'y Dig. §§ 31, 48, 59, 61, 68; 51 Am. Rep. 761; 19 Wis. 497; Shear & Redf Neg. § 11; 1 Redf. R'y (5th Ed.) 570 and note; 41 Am. Rep. 355; 84 Am. Rep. 690; 15 Am. Rep. 633; 4 Am. Rep. 274; 95 U. S. Rep. 161; 96 IT. S. Rep. 164; 4 Am. & Eng. Ency. L. 74, 76 and note; 45 Am. & Eng. R. R, Cas. 58; 45 Am. & Eng. R. R. Cas. 191.

English, Judge:

This was an action of trespass on the case, brought by Wm. T. Butcher against the West Virginia & Pittsburgh Railroad Company in the Circuit Court of Lewis county to recover damages for an injury occasione'd by a train of cars belonging to the defendant running against a wagon and team of three horses at "Dodson's Crossing" on the line of defendant's road between the village of Jane Lew and town of Weston in said county. The plaintiff, at the time of the collision, was riding in the wagon, and a boy was riding the saddle horse in the team. The declaration contains the usual allegations, and the damages are laid at two thousand dollars.

As the regular judge of the Circuit Court could not preside at the trial, John J. Davis, was elected special judge, and presided at the trial.

The plea of not guilty was interposed, issue was joined thereon, and the case was submitted to a jury, who, having heard the evidence and arguments of counsel, found for the plaintiff, and assessed his damage at two thousand dollars; and thereupon the defendant by its attorney moved the court to set aside said verdict and grant it a new trial, upon the ground that the same was contrary to the law and the evidence in the cause, which motion was overruled, and judgment was rendered upon said verdict, to which opinion of the court in overruling said motion the defendant by its counsel excepted and tendered a bill of exceptions, in which the entire evidence introduced by the plaintiff and the defendant is set forth.

The material facts disclosed by the evidence introduced by the plaintiff are that on the 23d day of May, 1890, the plaintiff was passing along the turnpike road leading from the village of Jane Lew to the town of Weston in a wagon drawn by three horses; that when plaintiff and his team, which was driven by a boy riding one of the horses, was about two hundred yards from the Dodson crossing, where the railroad crosses said turnpike, the train came up behind him, and scared his horses, and they ran off. At this point, and from there to the said crossing, the turnpike and railroad ran parallel, and were very close together, and at said crossing said team and the railroad train collided, resulting in cutting and bruising the plaintiff, and mashing and lacerating his left hand to such an extent that it had to be amputated. The evidence shows that the train was running at the speed of sixteen miles an hour, which would be about one mile in four minutes, and it would run two hundred yards in about thirty seconds. After the horses commenced running they must have gone at about the same speed, because they met the locomotive at the crossing, or rather ran into it at that point, although they may have had a little the start of the train.

Was the injury complained of caused by the failure of the trainmen to give the statutory signal by blowing the wdiistle or ringing the bell? Can we say, that, if the whistle had been blown for Dodson's crossing at a point three hundred and thirty yards therefrom, as required by statute the injury would not have occurred? The plaintiff, when asked, "Where was the train when the team started to run off? How far was it from Dodson's crossing?" answered, "I should say two hundred yards, and that when the horses started to run off they were about two hundred yards from Dodson's crossing;" so according to his own statement, the train must have been about opposite to his wagon when they started to run. And he further states that the train came up behind him, and scared his horses, and they ran off; and when asked: How it was that he knew the train was coming. "You say the horses were scared, and there was nothing there to obstruct your view, and the train was running close to the county road?" answered, "The noise of the train behind me scared the horses;" and when asked, "Well, William, were you drinking any that day?" answered, "Yes, sir;" and when asked, "Can you account for them how many?" answered, "I know I did not take more than two, and I ain't positive I took two." He further states that Ralph Butcher, a boy seventeen or eighteen years of age, was driving the team, riding the saddle horse, and he (plaintiff) was sitting in the wagon on the seat board, and that the accident occurred immediately on the crossing.

We next look to the condition of Ralph Butcher, the driver, and find that Green Waggoner, a witness for the defence, in regard to whose testimony there is no conflict, says that on the 23rd of May he went up the road behind plaintiff as far as Van Flesher's; that there was a young fellow with Butcher; Butcher was on the wagon, and looked like he was drunk; both of them seemed to be tottering along; and when asked to explain to the jury wdiat he meant, answered, "He looked to me like he was drunk;" and when asked, "How was the other fellow?" answered, "He was drunk, too," and when asked if he was tottering too, answered, "It looked that way."

Harrison Alkire another witness for the defence, states that he saw them about a quarter of a mile from Dodson's crossing, at Eddy's blacksmith shop. That when Butcher and this young man came up to the shop they ran against the fence, and one of the horses got fastened in the fence.

The fore horse got down close to the fence, and got his trace fastened. The young man got off the horse to fix the trace and fell down in the road. "I would call them drunk. I helped him after he got off his horse, and then he and Mr. Butcher went about their business." That the road was wide enough for two wagons to pass where the horse got fastened. Mr. Eddy, the blacksmith, after speaking of the team running against his fence, states that "Mr. Butcher, after some time, got off of the wagon, and came into the shop, and from his talk and conversation I judged him to be drunk. He could hardly stand up, and had to hold to the side of the shop. The young man was on the saddle horse. He got off of the horse after the team ran into the fence, and he and Harrison Alkire fixed up a trace that had come unfastened, and got the team away from the fence. After that he staggered around, and fell down."

Moses Kittle, another witness for the defence, states that he saw a man and boy passing with a wagon and three horses before they reached Eddy's shop, and heard great hallooing and whooping on one or two occasions, and thought it was cattle coming up the pike; and when he went over to the rise towards Waggoner's, saw the wagon with three horses in it and two parties away up on the turnpike.

There is other evidence on this point, but this is sufficient to clearly indicate not only the condition of the driver,...