Darling v. Baltimore & O. R. Co., 10346

• Decision Date: 18 February 1952
• Docket Number: No. 10346,10346
• Citation: 136 W.Va. 303,69 S.E.2d 139
• Court: West Virginia Supreme Court
• Parties: DARLING, v. BALTIMORE & O. R. CO. et al.

Page 139

69 S.E.2d 139

136 W.Va. 303

DARLING, v. BALTIMORE & O. R. CO. et al.

No. 10346.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1951.

Decided Nov. 13, 1951.

Dissenting Opinion Dec. 11, 1951.

Petition for Rehearing Refused Feb. 18, 1952.

Syllabus by the Court

1. In an action to recover damages for wrongful death, disregard of the requirements of a traffic statute or ordinance is prima facie actionable negligence when it is the natural and proximate cause of decedent's death, and where the evidence conflicts on the question of proximate cause the question is one of fact for jury determination.

2. 'The fact that witnesses have heard signals given by a locomotive approaching a crossing warning travelers of danger, is not necessarily in conflict with the evidence of other witnesses who did not hear them; for the observation of the fact by those who heard is consistent with the failure of the others to hear them.' Pt. 1 Syl., Cavendish v. Chesapeake & Ohio Railway Company, 95 W.Va. 490 .

3. In the trial of an action for the recovery of damages for wrongful death, contributory negligence becomes a question of law for the court, where the facts bearing upon the question are not in conflict, and reasonable men can draw only one conclusion therefrom.

4. The negligence of an operator of a motor vehicle, attempting to cross a public railroad crossing, cannot be imputed to a passenger in such vehicle, who has no voice in directing and governing the movements of the vehicle; nevertheless, the passenger must exercise reasonable care for his own safety.

5. The operator of a motor vehicle, as well as the passengers therein, who is proceeding to cross a railroad crossing must not only look, but must look effectively for the purpose of observing an approaching railroad train.

6. It is reversible error, in an action at law to recover damages for wrongful death, for the trial court to refuse a motion for the withdrawal of a juror and a mistrial, on the ground that counsel for the prevailing party in the closing argument before the jury, over objection, made repeated disparaging remarks reflecting on the character of a party or a witness.

7. Arrowood v. Norfolk & Western Railway Co., 127 W.Va. 310 distinguished.

George S. Wallace, George S. Wallace, Jr., Huntington, for plaintiffs in error.

Jess Hammock, Huntington, M. J. Ferguson, Wayne, Lilly & Lilly and R. G. Lilly, all of Charleston, for defendant in error.

RILEY, Judge.

James Leon Darling, Sr., administrator of the estate of James Leon Darling, Jr., instituted in the Circuit Court of Wayne County this action of trespass on the case against The Baltimore and Ohio Railroad Company, Samuel I. Stephens, its engineer, and Hughie D. Bee, its fireman, to recover damages for the alleged wrongful death of plaintiff's decedent, caused by a collision between defendant railroad company's passenger train No. 78, operated by the defendant Stephens, as engineer, and the defendant Bee, as fireman. To a judgment in plaintiff's favor in the amount of ten thousand dollars, based upon a jury verdict, this writ of error is prosecuted.

The declaration contains three counts: The first count alleges the failure of defendants to operate the train at a reasonable, proper, legal and safe rate of speed; the second count alleges the failure to give the proper crossing signals; and the third count alleges the failure to obey an ordinance of the City of Huntington, which required the train to reduce its speed to ten miles an hour before entering the crossing at Third Avenue and Twenty-third Street in the City of Huntington.

After plaintiff had rested his case, fireman Bee moved the court to strike the evidence and direct a verdict in his favor on the ground that there was no evidence connecting him in any way with any act of negligence or omissions of duty which resulted in the collision. This motion being overruled, defendant Bee announced in open court that there would be no further appearance by him in defense of the action that he would stand on the record; and that when he should be called as a witness it would be as a witness for defendant railroad company and not in his own behalf. At the same time the defendant railroad company and engineer Stephens moved the court to strike the evidence and direct a verdict for them, which motion was likewise overruled.

On the morning of February 23, 1947, at 12:05, the weather being cloudy and cold, but visibility good, defendant railroad company's passenger train No. 78, consisting of its engine No. 1383 and three coaches, which was being operated by the individual defendants, was moving south (east by railroad direction) on The Baltimore and Ohio Railroad Company's tracks from Huntington to Parkersburg, when, at its Twenty-third Street and Third Avenue crossing, in the City of Huntington, it collided with an automobile driven by Vilias H. (Tom) Ward, in which plaintiff's decedent was riding in the rear seat.

The defendant offered in evidence as 'Defendants' Exhibit No. 1', a map entitled 'Layout of Intersection of 3 Avenue & 23 Street, Huntington, W. Va.,' made from an actual survey and drawn to a scale of one inch equals twenty feet, and five photographs, filed as 'Defendants' Exhibits Nos. 2, 3, 4, 5, and 6,' all taken in the center of Third Avenue.

The defendant railroad company's tracks, before they reach the said crossing, as they travel in the direction of Parkersburg, curve to the right. To the east the tracks of The Chesapeake and Ohio Railway Company at the crossing parallel defendant railroad company's tracks, there being a distance of forty-three feet between the center lines of the two railroad companies' tracks. The portion of Third Avenue lying directly to the east of the crossing from curb to curb has a width of 65.3 feet. Between the two lines of tracks and at an equal distance between them and slightly to the north of the northerly property line of Third Avenue, as extended across the crossing, there was a watchman's shanty, maintained by the defendant railroad company for the purpose of serving both crossings. The shanty was six feet, three inches by eight feet and was approximately ten feet high. Paralleling The Chesapeake and Ohio Railway Company's tracks on the east and running almost to the northerly property line of Third Avenue is a large building occupied by the American Car and Foundry Company.

At the time of the collision there was a solid wooden fence with a height of approximately eight feet, separating the property of American Car and Foundry Company from Third Avenue, the fence being directly along the northerly property line of Third Avenue. To the south of Third Avenue at the crossing and a short distance East of the Chesapeake and Ohio tracks, there was the 'Spur Filling Station', which is laid out in a semi-circle with a curb, and upon which there was a flood light burning at the time of the collision, located 65.3 feet south of the northerly curb of Third Avenue. At the westerly end of the semi-circle of the filling station, a short distance east of the easterly rail of the Chesapeake and Ohio tracks, there was another flood light; and there was still another flood light at the easterly end of the filling station semi-circle. There were six other lights between the southerly curb line and the filling station building, substantially in the center of the semi-circle. In addition to these lights there were three signboard lights, slightly east of the filling station building; two signboard lights slightly west of the filling station building; and a street light overhead in the middle of Third Avenue, a short distance east of The Chesapeake and Ohio Railway Company's tracks. At the time of the collision all these lights were burning.

Approximately 161.7 feet to the east of the center line of defendant railroad company's tracks near the northern curb line of Third Avenue there was a convictional reflectorized sign with the large letters 'RR' separated by two cross marks. North of the northerly curb of Third Avenue and 59.5 feet east of the center line of defendant railroad company's tracks there was a wooden railroad crossing sign, which from the photographs seems to consist of a wooden post near the top of which there were cross-pieces of wood on the wooden base, one of which cross-pieces bears the legend 'Railroad' and the other 'Crossing'; and on the wooden base appear the words 'Look Out For Locomotive.' For a considerable distance from the ground, this post is painted in diagonal black and white stripes, which appear prominently from an examination of the photographs introduced in evidence as 'Defendants' Exhibits Nos. 4, 5, and 6.' At the crossing Third Avenue runs in a straight line approximately at right angles to defendant railroad company's tracks, and at least for a considerable distance east and west of the crossing, as well as on the crossing itself, the travelled portion is smooth and level.

Defendant's witness, Allen T. Blount, a civil engineer employed by defendant railroad company, who made the map filed as 'Defendants' Exhibit No. 1', and the survey from which said map was prepared, testified that from a point marked on the map by the symbol 'one' 142 feet east of defendant railroad company's tracks, the line of vision of a person standing in the center of Third Avenue intersects defendant railroad company's tracks in a northerly direction at 80 feet; that at the point marked 'two' on the map, 108 feet east of said tracks, the line of vision intersects the tracks at 105 feet; that at the point marked 'three' on said map, 93 feet east of said tracks, the line of vision intersects said tracks at 137 feet; and that at the point marked 'four' on said map, 79 feet east of said tracks, the line of vision intersects said tracks at 490 feet. The various points where the witness' line of vision intersect the defendant railroad company's tracks from the points...