Craighead v. Norfolk and Western Ry. Co.

Decision Date05 July 1996
Docket NumberNo. 22946,22946
Citation197 W.Va. 271,475 S.E.2d 363
CourtWest Virginia Supreme Court
PartiesJeanette CRAIGHEAD, as Administratrix of the Estate of Steven S. Craighead, Plaintiff Below, Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, a Corporation, and B.R. Turner, Defendants Below, Appellants.

1. "The owner or possessor of property does not owe trespassers a duty of ordinary care. With regard to a trespasser, a possessor of property only need refrain from wilful or wanton injury." Syllabus point 2, Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1991).

2. "For a trespasser to establish liability against the possessor of property who has created or maintains a highly dangerous condition or instrumentality upon the property, the following conditions must be met: (1) the possessor must know, or from facts within his knowledge should know, that trespassers constantly intrude in the area where the dangerous condition is located; (2) the possessor must be aware that the condition is likely to cause serious bodily injury or death to such trespassers; (3) the condition must be such that the possessor has reason to believe trespassers will not discover it; and (4), in that event, the possessor must have failed to exercise reasonable care to adequately warn the trespassers of the condition." Syllabus point 4, Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1991).

3. " ' "If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994).

4. " ' " 'Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested to do so. McAllister v. Weirton Hospital Co., 173 W.Va. 75, 81, 312 S.E.2d 738, 744 (1983) (citations omitted).' Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985)." Syllabus Point 2, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).' Syl. pt. 6, King v. Kayak Manufacturing Corporation, 182 W.Va. 276, 387 S.E.2d 511 (1989)." Syllabus Point 8, In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995).

5. " ' "One not in the employ of a railway company, using its tracks as a walk way over a portion thereof which pedestrians are accustomed to use for such purpose, but not at a public crossing, is at most a mere licensee, and such railway company owes to him no higher or other duty than it owes to a trespasser." Pt. 1, Syl., Blagg, Adm'r v. Baltimore and Ohio Railroad Company, 83 W.Va. 449, 98 S.E. 526. Such duty is no higher than not wantonly or wilfully to injure such pedestrian.' Hall Adm'x v. Monongahela West Penn Public Service Co., 128 W.Va. 547, 37 S.E.2d 471." Syllabus point 2, Stokey v. Norfolk & Western Ry. Co., 132 W.Va. 771, 55 S.E.2d 102 (1949).

6. After a trespasser or licensee is discovered upon railroad tracks, railway employees must use reasonable care to avoid injuring the trespasser or licensee.

7. "Though a trespasser on a railway right of way may not be directly on the track, yet if when the train reaches him he will be in a position of peril therefrom, it is the duty of the engineer to take such precaution for his safety by signal or otherwise as the circumstances reasonably dictate." Syllabus point 3, Stuck v. Kanawha & Michigan Railway Co., 76 W.Va. 453, 86 S.E. 13 (1915).

8. " 'An instruction is proper if it is a correct statement of the law and if there is sufficient evidence offered at trial to support it.' Syllabus point 5, Jenrett v. Smith, 173 W.Va. 325, 315 S.E.2d 583 (1983)." Syllabus point 4, Horan v. Turnpike Ford, Inc., 189 W.Va. 621, 433 S.E.2d 559 (1993).

9. "It will be presumed that a trial court acted correctly in giving or in refusing to give instructions to the jury, unless it appears from the record in the case that the instructions given were prejudicially erroneous or that the instructions refused were correct and should have been given." Syllabus point 1, State v. Turner, 137 W.Va. 122, 70 S.E.2d 249 (1952).

10. "The jury may determine the probable earnings of the deceased in a wrongful death action by considering his age, earning capacity, experience and habits, during his probable lifetime." Syllabus point 4, Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613 (1981).

Wade T. Watson, Brumfield and Watson, Bluefield, for Appellants.

J. Franklin Long, Katherine L. Dooley, Bluefield, for Appellee.

ALBRIGHT, Justice:

Appellants, Norfolk and Western Railway Company and B.R. Turner (defendants below), appeal a $657,100.50 judgment entered against them by the Circuit Court of McDowell County in a wrongful death action that arose after Steven Craighead was struck and killed by a Norfolk and Western train. Appellants contend that the circuit court erred by giving instructions that (1) permitted the jury to apply a duty of ordinary care when the circumstances required a finding of willful and wanton conduct; (2) improperly imposed on appellants a duty of ordinary care to discover a trespasser on its tracks at a place other than a public crossing; and (3) permitted the jury to find that appellants were negligent under circumstances that were not supported by the evidence. Appellants further contend that the circuit court erred by allowing expert opinion testimony regarding appellant's negligence and by failing to exclude speculative evidence of future lost earnings. We find that the instructions were proper and were supported by the evidence, that appellants waived error on the issue of the expert opinion testimony, and that the evidence of future lost earnings was properly allowed. Accordingly, we affirm.

The accident that resulted in Steven Craighead's death occurred in close proximity to railroad milepost 389, 1 which is near Landgraff, West Virginia, a rural community with residences located beside railroad tracks owned by appellant Norfolk and Western Railway Company ("N & W"). Milepost 389 is located approximately 711 feet to the east of the Landgraff railroad crossing. The tracks in this area run upgrade to the east of Landgraff and curve gradually to the north. According to the evidence presented at trial, for approximately twenty years many of the residents of Landgraff have regularly walked on the N & W tracks and right-of-way in the Landgraff area with the knowledge of N & W employees. On the afternoon of November 12, 1991, twenty-one-year-old Steven Craighead was walking east on the north track of the double-track line near Landgraff, when he was approached by an eastbound train traveling on the south track. The eastbound train was made up of pulling diesels on the head end, or front, followed by approximately ninety-seven cars and pusher diesels on the rear end. The total length of the train was roughly one mile. The engineer of the eastbound train testified that he observed Steven Craighead walking at the head of the ties, which, according to one of the experts who testified, was the east end of the ties. Upon seeing Steven Craighead on the track ahead, the train engineer blew his horn. Steven responded by moving to the north, off of the track and onto the ballast, approximately eight to ten feet away from the rails.

Shortly after the eastbound train began to pass Steven, the head end of the train encountered a westbound consist 2 of three engines and no cars traveling on the other track. Appellant B.R. Turner, engineer of the westbound consist, was operating the consist without a crew, apparently from the lead engine. The lead engine 3 of the westbound consist was in a long-nose-forward configuration. Long nose forward refers to an engine that is traveling in a direction which places the cab toward the back, with the longest portion of the engine located in front of the cab. Unlike an automobile, train engines are designed to operate with the same efficiency while traveling either forward or backward. However, the cab, where the engineer is located, sits nearer to one end of the engine. According to the record here, engineer Turner was located on the right or northerly side of the engine and approximately sixty feet from the front of it. As the westbound consist moved past, the engineer of the eastbound train radioed engineer Turner, of the westbound consist, to notify Turner that his consist "looked good." 4 However, the eastbound engineer did not inform engineer Turner that someone had just been seen on the tracks ahead of Turner.

As the westbound consist continued, traveling downgrade at twenty-six miles-per-hour, 5 it approached milepost 389 and entered a gradual left-hand or northerly curve. Due to the combination of the long-nose-forward configuration and the left-hand curve, engineer Turner was unable to see the track ahead of him for a distance of approximately 100 feet. Apparently, Steven Craighead had returned to a position on or near the northern track and was walking toward the westbound consist. At a point near milepost 389, and within the left-hand curve, the right-front side of the lead engine of the Turner consist struck Steven Craighead. Engineer Turner heard a sound and saw Steven fall away to the right side, or north side, of the tracks. The eastbound train was still passing the westbound consist when Steven was struck. Engineer Turner stopped the westbound consist and...

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