Canterbury v. Tut: Dir. Gen. Ok R.R.s

• Decision Date: 12 October 1921
• Docket Number: No. 3988.,3988.
• Citation: 87 W.Va. 233
• Court: West Virginia Supreme Court
• Parties: John I). Canterbury v. Tut: Director General ok Railroads and Alexander II. Wilson.

87 W.Va. 233

John I). Canterbury

v.Tut: Director General ok Railroads and Alexander II. Wilson.

No. 3988.

Supreme Court of Appeals of West Virginia.

Submitted October 12, 1921). Decided October 19, 1920.

1. Railroads Omission of Signals Actionable Unless Traveler is Guilty of Contributory Negligence.

It is the duty of those in charge of a train being operated ever a railroad in this state, upon approaching a highway crossing, to give the signals required by law, and if a traveler crossing such railway at such crossing is injured by be ing struck by a moving train which has not given such crossing signals, the operator of such railway will be liable for the resulting injury, unless it appears that the injured party was guilty of contributory negligence in entering upon the crossing under the circumstances of the particular case, (p. 237).

2. Same Contributory Negligence Question of Fact.

Whether a traveler upon a highway is guilty of contributory negligence in entering upon a crossing is a question for the jury, where the facts are in dispute, or where from the conceded facts two conclusions may be drawn with equal plausibility, one of which would make such injured party guilty of contributory negligence, and the other indicate that he was in the exercise of due care. (p. 241).

3. Same Contributory Negligence Defined.

In determining whether or not a traveler crossing a railroad at a highway crossing is guilty of contributory negligence, so as to bar a recovery by him for an injury received by being struck by a train at such crossing, the jury must consider all of the facts and circumstances shown in the case, including the speed of the train, the fact that such train did or did not give the usual crossing signal, the distance at which an approaching train could be observed by one going upon the crossing, the care exercised by such injured party before entering thereon, and if from all of these facts it appears that the injured party has taken such precautions as would have been taken by one of ordinary prudence under the circumstances, he will not be held guilty of contributory negligence. (P. 241).

(Williams, President, absent.) Error to Circuit Court, Mason County.

Action by John D. Canterbury against the Director General of Railroads and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

Rankin Wiley, for plaintiffs in error.

Somerville & Somerville and Chas. E. Hogg, for defendant in error.

Ritz, Judge:

The plaintiff, while driving two horses belonging to him tttached to a buggy, was struck by a train operated by the Director General of Bailroads at a highway crossing, as a result of which both of his horses were killed, his buggy destroyed, and he sustained very severe and permanent personal injuries. He brought this suit to recover damages for the injury thus sustained, and from a judgment of the circuit court awarding him compensation therefor this writ of error is prosecuted.

The plaintiff was a rural mail carrier at the time of the accident. His trip began in the morning at Callipolis Ferry, and extended to some point out in the county of Mason, which is not named in the record, and in the afternoon he returned to Callipolis Ferry, but by a different road from that used by him on his outward bound trip. On this return trip the road led him across the track of the Baltimore & Ohio Bailroad Company which was then being operated by the defendant Director Gieneral of Bailroads. Before reaching the particular crossing at which this accident occurred the public highway for several hundred yards ran along parallel with the railroad track. The highway, however, was located down in a low bottom, while the railroad track was elevated some fifteen or twenty feet above. Just before reaching the crossing the highway turns toward the railroad track and ascends an embankment to a level with the railroad, and crosses the track at an angle of about forty-five degrees. Just a few feet north of the crossing the railroad track curves slightly, but not sufficiently to obstruct the view thereof by one approaching the crossing from the direction in which the plaintiff was approaching it. About six hundred feet from the crossing, however, there is a considerable curve in the railroad track; and because of this curve, as well as because of the fact that there is a deep cut through which the railroad, runs, a view of the track, or of a locomotive approaching thereon, cannot be had from the crossing for a distance of more than about six hundred feet. The accident occurred on the 12th day of February which was, according to the testimony, a rather cold, cloudy day, there having been frequent showers of rain and sleet during the day, and the plaintiff says that just before he reached the crossing, and while he was starting up the incline in the high- way to enter upon the crossing, a heavy shower of rain and sleet began, to protect himself from which he raised the top of bis buggy, without stopping the team, however. The train which struck the plaintiff at the crossing was a passenger train, and was, according to the testimony of the engineman in charge, running at a speed of forty-five miles an hour.

The sole negligence charged in the declaration, and relied upon for a recovery, is that those in charge of the train did not sound any alarm upon approaching this crossing, as required by law. by reason of which failure the plaintiff sustained his injuries. Under the instructions of the court, in order to find for the plaintiff at all, the jury were required to find that the crossing alarm was not given, so that the jury's verdict necessarily found that the engineman did not blow the whistle, nor ring the hell when approaching this crossing. This finding is supported by the evidence which is conflicting upon this point. The plaintiff introduced a great number of passengers who were on the train, all of whom swear that they heard no crossing signal given. Little weight, however, could be given to their testimony, as it was of a purely negative character, and not only that, but their situation upon the fast-moving train was sue!) that there was very little probability, indeed, that they would have heard the signal had it been given, unless their attention had been particularly directed to it, which is not shown to be the case. Hut there are some other witnesses whose testimony is of a more convincing character. One witness testifies that just before this accident Canterbury stopped at his boat, which was anchored near the crossing, and talked to him: that at. the time the train passed he, together with a companion, was standing very near the whistle board; that their attention was attracted to the passing train, and both of them swear that it did not give the crossing alarm. There were also introduced two female witnesses, one of whom lived near the point of the accident, who stated that they had just crossed the railroad going up a hollow to the residence of one of them, at the time the train passed, and that this point at which they crossed was right at the whistle board, and that the train did not whistle, and one of them testifies that they commented, upon this fact at the time, and before they ever heard of Canterbury's injury. On the other hand, the engineman in charge testifies that he blew the regular crossing signal, and set his bell ringing at the proper distance from the crossing. The flagman on the train, who was riding in the rear ear, states that it was part of his duty to listen for the whistle signal, and that he heard the crossing signal blown. On this showing the jury found, that the crossing signal had not been given, and we cannot say that the testimony did not justify the verdict.

The defense most insisted upon is that, assuming that the crossing signal was not given, still, under the evidence!, the plaintiff was guilty of contributory negligence such as bars a recovery upon his part. In fact it may he said that this is tire only question of substance involved in the case. There is no room for the application of the doctrine of last (dear chance.', as it clearly appears that if would have' been impossible to stop the rapidly-moving train in time to prevent the accident had the engineer seen the plaintiff upon the crossing at the very earliest moment that he could have been seen from the locomotive. The defendants insist that the plaintiff was guilty of contributory negligence in driving upon the track under the circumstances shown. It appears that while the plaintiff was driving along the highway parallel with the railroad track, a view could not be had erf the railroad in the direction from which the train came further than the deep cut above referred to, which was about six hundred feet from the crossing, and through which the railroad track was laid upon a considerable curve, nor could a clear view be had even of the track between this point and the crossing until a traveler reached the to]) of the incline just before going upon the crossing. At a point about forty-five feet from the center of the track measured along the center of the highway, a locomotive would be visible for a distance of six hundred, feet in the direction from which the train came that struck the plaintiff. This point of observation is only about twenty-six feet from the center of the railroad, track measured at right angles thereto, but because of the fact that the highway intersects the railroad at an angle of forty-five degrees the distance is longer measuring it on the center line of the...