Chesapeake & O. Ry. Co. v. Hartwell
| Decision Date | 11 December 1956 |
| Docket Number | No. 10818,10818 |
| Citation | 142 W.Va. 318,95 S.E.2d 462 |
| Court | West Virginia Supreme Court |
| Parties | The CHESAPEAKE AND OHIO RAILWAY COMPANY v. Irene Tabor HARTWELL. Irene HARTWELL v. The CHESAPEAKE AND OHIO RAILWAY COMPANY. |
Syllabus by the Court.
1. Where the owner-driver of a motor vehicle drives the vehicle on the public crossing of a railway company, such owner-driver is an invitee, in the sense that the right to be on the crossing exists, and the railway company and the owner-driver of the automobile have mutually the duty to use reasonable care to prevent a collision; but when the automobile is driven off the crossing, through the negligence or ineptness of the driver thereof, so that it becomes stalled on the main line tracks of the railway company in such position that it could not be extricated in time to prevent a fast train from colliding with the automobile, the driver then and there became a trespasser, and the railway company was relieved from its duty to use reasonable care, but was under the duty not wantonly or wilfully to cause damage to the automobile.
2. Where in two consolidated actions, the first by a railway company against the owner-driver of an automobile, in which the railway company seeks to recover damages to its train caused by a collision with the automobile, alleged to have been driven by the negligence of the owner thereof from the railway company's public crossing on its main tracks where the collision occurred, and the second by the owner-driver of the automobile against the railway company to recover damages to the stalled automobile, it appears that the last efficient proximate cause of the collision was the negligence of the automobile owner in driving her automobile off the railway company's public crossing and upon its main line track, a judgment based upon a directed verdict for the defendant in the first action, and a judgment in favor of the automobile owner against the railway company based upon a verdict of the jury in the second action, will be reversed on writs of error to this Court, both verdicts set aside, and under the holding of this Court in Koblegard Co. v. Maxwell, 127 W.Va. 630 , new trials will be awarded in both actions.
3. 'The proximate cause of an injury is the last negligent act contributing thereto, without which such injury would not have resulted.' Pt. 2 Syl., Webb v. Sessler, 135 W.Va. 341 .
Fitzpatrick, Marshall, Huddleston & Bolen, William C. Beatty, Huntington, for plaintiff in error.
Spencer P. Simpson, Charleston, for defendant in error.
These two actions of trespass on the case were instituted in the Circuit Court of Kanawha County, and were consolidated by an order of that court.
In the first action The Chesapeake and Ohio Railway Company, a corporation, sought to recover $1,683.02 for property damage to one of its passenger trains, being designated in the record as a first-class train, in a collision between the train and an automobile owned and driven by the defendant, Irene Tabor Hartwell, which was stalled across the tracks of the railway company to the west of but near a public railway grade crossing in South Charleston, Kanawha County, on May 12, 1954.
In turn the defendant in the first action, in the abbreviated name of 'Irene Hartwell', sought to recover in an action of trespass on the case against The Chesapeake and Ohio Railway Company, damages in the amount of $450 alleged to have been sustained by her automobile in the same collision.
Hereinafter The Chesapeake and Ohio Railway Company will be referred to as the 'railway company', and the defendant, Irene Tabor Hartwell, as 'Irene Hartwell'.
In its declaration the railway company alleges that Irene Hartwell near midnight on May 12, 1954, negligently operated her automobile while attempting to cross the Rock Lake grade crossing, a public crossing in the City of South Charleston; and, further, that Irene Hartwell negligently drove her automobile completely off the public crossing, and on the railway company's tracks, the automobile coming to a stop astride the railway company's westbound main line, where it remained until it was struck by passenger train No. 5. It is alleged that the collision in which both the Hartwell automobile and the railway company train sustained extensive damages was proximately caused by the negligence of Irene Hartwell, without fault or negligence on the part of the railway company.
In Irene Hartwell's action she alleges in her declaration that the collision was the proximate result of the railway company's careless and negligent failure to keep a proper lookout and in operating the train at an excessive rate of speed.
After both actions had been matured in the Circuit Court of Kanawha County and had been consolidated by order of that court, a trial was had to a jury after the pleas of the general issue.
At the conclusion of the railway company's evidence, counsel for Irene Hartwell moved the court to strike the evidence, and direct a verdict for her as defendant. The trial court overruled this motion, and she then introduced her evidence. After both parties had rested, Irene Hartwell again moved the court to strike the evidence of the railway company and direct a verdict for her as the defendant in the first action. The circuit court sustained this motion on the ground that the railway company had failed by its evidence to show negligence on the part of that defendant. To this action of the circuit court exception was made, and then the jury was directed in the action of The Chesapeake and Ohio Railway Company against Irene Tabor Hartwell to find for the defendant in that action.
A motion having been made by the railway company to strike the evidence of Irene Hartwell and direct a verdict for it, as defendant in the second action, was overruled and, accordingly, the case of Irene Hartwell against The Chesapeake and Ohio Railway Company was submitted to the jury, and the jury returned a verdict in favor of the plaintiff in that action against the railway company in the amount of $295.
After the jury in the case of The Chesapeake and Ohio Railway Company against Irene Tabor Hartwell was discharged from consideration of that case, and, after hearing the instructions of the court and the arguments of counsel, the jury retired in the case of Irene Hartwell against The Chesapeake and Ohio Railway Company, returned in open court, and found in favor of the plaintiff in that action, assessing her damages at $295.
Thereupon, the railway company, by its counsel, moved to set aside both verdicts and award it new trials. These motions having been overruled, to which action counsel for the railway company objected and excepted, the circuit court on October 10, 1955, entered judgment on both verdicts, which provided that the railway company take nothing in its action against Irene Hartwell; that Irene Hartwell recover her costs, including the statutory attorney's fees; and that Irene Hartwell in her action against the railway company recover from the defendant the sum of $295, with interest and costs, including the statutory attorney's fee.
To both judgments The Chesapeake and Ohio Railway Company has prosecuted writs of error to this Court.
On the night of May 12, 1954, Irene Hartwell, the owner of a 1946 Plymouth four-door automobile, was returning from Boone County to her home on MacCorkle Avenue in South Charleston. She was accompanied by one Clyde Meadows, who rode in the front seat of the automobile, and also in the automobile were Georgia Pearce and a Mrs. Bailey as passengers. In returning from Boone County, a young man named J. D. Bayes, drove the car until it reached his home about two blocks east of Rock Lake crossing, where Bayes left the Hartwell automobile, and thereupon Irene Hartwell took over the operation of the car, driving the car west on the Kanawha and James River Turnpike in the City of South Charleston. At this portion of its course the turnpike runs in a generally east-west direction almost parallel with and to the south of the main line tracks of the railway company. After driving a short distance from the Bayes home, the car came to the railway company's grade crossing known as Rock Lake crossing. This crossing intersects the tracks of the railway company at about right angles in a north-south direction. As Irene Hartwell approached the grade crossing, she made a right turn from the turnpike, in order to proceed northerly across the tracks. However, instead of crossing the tracks of the railway company, the car was driven off the west side of the crossing, which, as this record discloses, is on the driver's left at the crossing, where her car was caused to come to a complete rest a short distance west of the crossing and across the rails of the railway company's westbound main line track. The Hartwell automobile when it came to a rest was so located that the radiator was pointed in a northwesterly direction, and the rear thereof was four to five feet, or more, to the west of the crossing itself.
In the appraisement of this case this Court is realistic enough to know that through trains cannot slow down, in the absence of an emergency, at every crossing, public or private. We say this because railroads are built for the purpose of operating trains thereon, and such trains are entitled to the free use of the tracks. 15 M.J., Railroads, Section 48; Chesapeake & Ohio Railway Co. v. Craft, 4 Cir., 162 F.2d 67.
Beyond peradventure this record discloses that at the crossing there were three tracks, the first on the south side parallel with the turnpike over which Irene Hartwell was approaching being the railway company's eastbound main line; the second the railway company's westbound main line; and the third a side track. The crossing was twenty-four feet wide on the eastbound and westbound main lines, and of sufficient width to permit the passage of two...
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...clearly the sole proximate cause of the accident in this case. Webb v. Sessler, 135 W.Va. 341, 63 S.E.2d 65; Chesapeake & O. Ry. Co. v. Hartwell, 142 W.Va. 318, 95 S.E.2d 462. It is clear from the facts in this case that the defendant, Dayton Canterbury, was guilty of negligence as a matter......