Casdorph S. v. Hines

• Decision Date: 08 November 1921
• Docket Number: No. 4224.,4224.
• Citation: 89 W.Va. 448
• Parties: John 0. Casdorph et als. v. Walker D. Hines, Director General.
• Court: West Virginia Supreme Court

89 W.Va. 448

John 0. Casdorph et als.

v. Walker D. Hines, DirectorGeneral.

No. 4224.

Supreme Court of Appeals of West Virginia.

Submitted November 1, 1921.

Decided November 8, 1921.

Submitted November 1, 1921. Decided November 8, 1921.

1. Railroads Testimony of Witnesses in Position to Observe Failure to Give Crossing Signals Entitled to Peculiar Weight. In an action for injuries sustained by the driver of a wagon at a railway crossing, the testimony of witnesses, who were in position to observe with unusual care the failure of the railway company's agents to sound the whistle or bell of the approaching locomotive is entitled to peculiar weight. (p. 453).

2. Same Injury at Crossing Not in Itself Evidence of Contribu-tory Negligence.

Infliction of an injury at a railroad crossing is not in itself evidence of contributory negligence on the part of the person injured. (p. 453).

3. Same Contributory Negligence at Crossing May in Some Cir-cumstances be Question for Court.

Whether an injury inflicted at a railroad crossing was due tothe negligence of the person injured, or whether but for his negligence the injury would not have occurred, may in some circumstances be questions for the court to determine. (]). 453).

4. Same Contributory Negligence at Crossing Question for Jury on Conflicting Evidence.

Cut where the facts are controverted, or if not controverted, are such as warrant either of two reasonable inferences or conclusions as to the negligence of the person injured, one of which would warrant and the other preclude recovery by him, or his personal representatives, it is for the jury to say in sucb a case whether the person exercised due care for his own protection driving upon the crossing. (p. 453).

5. Same: Contributory Negligence of Traveler Relying on Flag-man's Omission of Signal Question for Jury.

It is a matter of common knowledge and experience that travelers approaching a railway crossing, where gates or flagman are usually maintained, take into consideration that fact in determining their course of conduct, and it is for the jury to determine whether in relying upon the omission of the flagman to give the proper signal, the traveler has given that circumstance such weight and consideration as an ordinary prudent man would under such circumstances. (p. 455).

6. Same Flagman's Omission of Signal Circumstance to be Con-sidered, in Determining Care by Traveler.

The omission of a flagman stationed at a crossing to give the customary stop signal is a circumstance to be considered with all other facts and circumstances in determining the degree of care exercised by an approaching traveler, (p. 455).

7. Same Traveler Not Bound to Look and Listen in One Par-ticular Direction.

A traveler approaching a crossing is not bound to look and listen exclusively in one particular direction for an approaching train, since danger might come from another, it being also his duty to observe the signals of the flagman stationed there for his protection against injury. (p. 456).

8. Same Traveler Under no Absolute Duty to Stop, Look and

Listen Under all Circumstances.

A traveler approaching a crossing is under no absolute duty to stop, look an'd listen for approaching trains under any and all circumstances. The failure so to do is no more than a circumstance for the jury to consider in determining the degree of care exercised by him. (p. 456).

9. Same Testimony as to Flagman's Practice to Warn Travelers Admissible on Issue of Contributory Negligence.

Where the evidence for the plaintiff shows that the person injured was accustomed to drive over a crossing at frequent intervals, testimony as to a flagman's habitual practice to warn travelers of approaching trains is admissible and important, as tending to prove his knowledge of and reliance upon the flagman's duty to give such warning. (p. 457).

Error to Circuit Court, Kanawha County.

Action by John 0. Casdorph and others, as executors of Caleb Casdorph, deceased, against Walker D. Hines, Director General of Railroads, for damages for the death of the deceased. Judgment for defendant, and plaintiffs bring error.

Reversed and remanded. Lynn & Byrne, for plaintiffs in error.

W. N. King, and Leroy Allebach, for defendant in error.

Lynch, Judge:

Caleb Casdorph, while driving his horse and light wagon along Virginia Street in the City of Charleston, attempted to drive over defendant's railway tracks where they intersect the public road or street, and in doing so, was struck by an east bound passenger train operated by defendant's agents, his wagon demolished, his horse fatally hurt, and he himself sustained injuries from which he died a few minutes later. His executors sued to recover damages for the injuries, and from a judgment for defendant, directed by the trial court, they have brought the case here for review.

From the testimony and map filed, it appears that the street and tracks approach and cross each other at an acute angle. The tracks, three in number, extend approximately east and west, and Virginia street in a somewhat south-easterly direction through that part of the city traversed by it. At the time of the accident, about 9 o'clock in the morning, as was his custom for years, Casdorph was driving towards the business center of Charleston from his country home, Virginia Street being his most direct and convenient route into the city. A short distance from the railroad, Mrs. Casdorph having alighted from the wagon, he continued the journey unattended.

Certainly, at least five persons saw him between this time and the collision, which occurred a few minutes later. Three of them, the watchman on duty at the crossing, James, who saw the accident from his office window one hundred and fifty feet away, and Nunnally, who was standing against a truck in the street about one hundred and sixty feet beyond the tracks, witnessed the actual impact of the locomotive with the wagon. Two others, Singleton and Littlepage, also on their way to Charleston, had just crossed the tracks in an automobile and were distant also about one hundred and fifty feet when the crash caused by the collision occurred.

While charging defendant with general negligence and carelessness in the operation of the train and locomotive, the chief points relied on in the proof were the failure to give proper warning of the train's approach by means of the locomotive whistle or bell, and more especially, the omission of the watchman stationed at the crossing to apprise Casdorph of the proximity of the train before he went upon the tracks. Defendant, on the other hand, insists that, assuming though we suppose not conceding that the proper signals and warnings were not given, still, the decedent, under the facts presented, was guilty of such contributory negligence as would preclude recovery. As the trial court sustained the motion to exclude plaintiff's evidence, and directed a verdict for defendant, the principal question presented here is whether the court erred in holding decedent guilty of contributory negligence as a matter of law

The solution of this question necessitates further inquiry into the facts. Casdorph, it appears, was eighty-three years old, but as no evidence was introduced as to his physical incapacity, his advanced age need not he considered. He was driving a gentle horse, and according to Singleton, who with Littlepage passed decedent about one hundred feet from the crossing, was "holding over to the right of the street." Apparently oblivious of the impending danger, he did not look in the direction of the train, but "just came right on and the train was coming, '' decedent being within fifteen or eighteen feet of the center of the crossing when the train, then about one hundred feet distant, sounded several sharp distress blasts with its whistle. James says he received no warning from the watchman, and Singleton and Littlepage, who, after passing decedent, crossed the tracks slightly ahead of the train, approaching rapidly from the west, insist that the watchman, at the time they passed him, was not out in the street, but was standing between the curb and his watch house, with his back partly towards them, his signal staff resting upon the ground, and that he offered no word or warning although the train was then very near. They were first apprised of its approach at about the same time they passed decedent, by the steam and smoke, which they saw emanating from the locomotive, which they judged to be about three hundred feet from the crossing, the train itself being at least partially obscured from view by several box cars standing on the track nearest the street. Concerned primarily with their own safety, and being then within a very short distance of the tracks, they undertook to cross and succeeded in crossing ahead of the train.

Witness, James, corroborates so much of Singleton's and Littlepage's testimony as relates to decedent's actions, and in addition, states that although he noticed Casdorph, when the latter was about sixty feet from the crossing, the train then being perhaps four hundred feet distant, the watchman "showed no Indication of recognizing Casdorph's approach," and continues with the statement as to the short distress blasts of the whistle, already referred to. All the witnesses who testify about the matter agree that the atmosphere was very dense and foggy, for which reason the steam and smoke, which Littlepage observed, lay low along the ground, and to some extent obstructed the view of the train, as did also the box cars mentioned, and in addition say that they heard no warning from whistle or bell, except the several short blasts immediately preceding the collision.

As these witnesses were in position to observe with unusual care the circumstances surrounding the accident, their testimony as to the neglect to sound the customary warnings by bell or whistle or both within a reasonable distance from the crossing, a duty dictated by reason and required by statute (...