Carnefix v. Kanawha & M. R. Co

• Court: Supreme Court of West Virginia
• Writing for the Court: LYNCH
• Citation: 73 W.Va. 534,82 S.E. 219
• Parties: CARNEFIX. v. KANAWHA & M. R. CO.
• Decision Date: 27 January 1914

82 S.E. 219
(73 W.Va. 534)

CARNEFIX.
v.
KANAWHA & M. R. CO.

Supreme Court of Appeals of West Virginia.

Jan. 27, 1914.

[82 S.E. 219]

Rehearing Denied July 1, 1914.

(Syllabus by the Court.)

Error to Circuit Court, Fayette County.

Action by J. W. Carnefix, administrator, against the Kanawha & Michigan Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Leroy Allebach and W. N. King, both of Charleston, for plaintiff in error.

R. T. Hubbard, Jr., and Dillon & Nuckolls, all of Fayetteville, for defendant in error.

LYNCH, J. By an action of trespass on the case, J. W. Carnefix, administrator, seeks recovery of damages from the Kanawha & Michigan Railroad Company for the killing of his son, Roy A. Carnefix, at a public crossing. From a judgment on the verdict of a jury, defendant obtained a writ of error.

The decedent, a young man 15 years of age, was killed at a public crossing, about 6 o'clock in the morning of August 29, 1910. He was driving a two-horse team and wagon from Boomer to Gauley Bridge. He and the train were moving in the same general direction up and on the north side of the Kanawha river. With others, also in charge of a team, but going in the opposite direction, he staid at Camp Rock the night preceding the accident. The place of encampment was a short distance below the crossing at which Carnefix was killed. The road thence to the crossing was at that time rough, rocky, and descending until within 35 or 40 feet of the railroad track, from which point to the track the roadbed was sandy and nearly level.

The fireman says he did not see the team until the train was about 200 feet from the crossing, and that it was then standing on the level part of the road, 5 feet from and parallel with the railroad track; that, when the train was about 100 feet of the crossing, he first saw Carnefix, who, according to his testimony, suddenly arose from some position within the bed of the wagon or from the ground, immediately turned the team towards the crossing, and endeavored to drive over the track in front of the rapidly approaching train, a collision with which, he also says, was therefore unavoidable by the engineer; that the speed of the train was 35 miles an hour; that, as soon as possible after the first view of Carnefix, the engineer applied the emergency brake, sounded the whistle, and made every possible effort to avert the imminent danger of a collision; and that, while the engineer could not avoid impact with the wagon, he did succeed in stopping the train before the rear coach had cleared the crossing. The engineer says he did not see, and explains his inability to see, the wagon and team until the engine was within 75 feet of the crossing. Both the engineer and fireman, and others, some of whom were and others were not passengers, testify to the sounding of the signals in the manner and at the distance required by the statute.

If the team and wagon were standing, on that occasion, in the position detailed by the fireman, plaintiff cannot recover, because of decedent's obvious negligence. But, while no other person examined as a witness saw the accident, there is in the record evidence by one witness, who says he was present a short time thereafter, and made an examination of the horse and wagon tracks, and that these tracks indicated that the team and wagon did not deflect from a straight course

[82 S.E. 220]

while passing over the level and sandy portion of the highway. On the contrary, he...