Daugherty v. Baltimore & O. R. Co., s. 10268

• Decision Date: 21 March 1951
• Docket Number: 10295,Nos. 10268,s. 10268
• Citation: 135 W.Va. 688,64 S.E.2d 231
• Court: West Virginia Supreme Court
• Parties: DAUGHERTY v. BALTIMORE & O. R. CO. (two cases).

Page 231

64 S.E.2d 231

135 W.Va. 688

DAUGHERTY v. BALTIMORE & O. R. CO. (two cases).

Nos. 10268, 10295.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 1951.

Decided March 21, 1951.

Syllabus by the Court.

1. A declaration in an action for the recovery of damages for wrongful death containing two counts, each of which charges the duty of the defendant, and avers that such duty was breached by particular negligent acts or omissions of the defendant, stated with reasonable certainty, and that the injuries complained of were caused by such negligent acts or omissions, sufficiently states a cause of action against the defendant and is good on demurrer.

2. A count in a declaration alleging several facts which together constitute a single cause of action is not subject to the defect of duplicity.

3. The formal defect of duplicity in a count in a declaration may not be raised by demurrer but may be reached by demand for specification of the particular ground of the action, or by motion for a bill of particulars, or by motion to require the plaintiff to elect which particular act he will rely upon at the trial of the action.

4. 'The allowance of a view by a jury is within the discretion of the trial court, and its refusal is not ground for reversal unless it is clearly manifest that a view was necessary to a just decision, and that the refusal operated to the injury of the party asking it.' Point 4 Syllabus, Compton v. County Court of Marshall County, 83 W.Va. 745 .

5. A farm crossing constructed and maintained by a railroad company under a covenant for the benefit of certain land of the grantor in a deed by virtue of which the railroad company acquired its right of way, which crossing is located on a road leading to such land, which is not a public street or highway, and which crossing is used during a long period of time by the owners of parts of the land to which the covenant extends, who under such covenant have a legal right to use such crossing, and by other members of the general public, with the knowledge and the passive acquiescence of the railroad company but which company has not erected a whistle post or a warning board, or constructed or maintained, or permitted any other person to construct or maintain, any special equipment or facility as an inducement or invitation to the public to use such crossing, is a private crossing and not a crossing at a public street or highway within the meaning of Code 31-2-8.

6. It is the duty of a railroad company in the operation of its trains as they approach a private crossing to exercise reasonable care to avoid injury to persons who have a legal right to travel upon and over such crossing when it has knowledge that such persons regularly use such crossing.

7. When the facts which control upon the question of negligence are not disputed and only one conclusion can be drawn from them by reasonable men the question of negligence is a question of law for the court.

8. 'It is not an abuse of discretion for the trial court to refuse to submit special interrogatories to a jury in a case where the issues are few and uncomplicated and it is evident that special verdicts would not aid the jury in reaching a correct conclusion.' Point 3, Syllabus, Davis v. Pugh, W.Va. .

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

Parsons & Wiswell, William E. Parsons and Merideth P. Wiswell, Huntington, for defendant in error.

HAYMOND, Judge.

These separate actions of trespass on the case were instituted in the Circuit Court of Cabell County by Duncan W. Daugherty, administrator of Josephine M. Stringer, deceased, against the Baltimore and Ohio Railroad Company, a corporation, and by Duncan W. Daugherty, administrator of Jesse P. Stringer, deceased, against the Baltimore and Ohio Railroad Company, a corporation, to recover from the defendant damages for the alleged wrongful death of each decedent which resulted from a collision between an automobile driven by Jesse P. Stringer in which his wife, Josephine M. Stringer, was riding as his guest, and a passenger train of the defendant, at a railroad crossing located some distance east of the City of Huntington on the morning of March 18, 1948. A jury returned a verdict in favor of the plaintiff in each action and to each final judgment, entered upon the verdict, on January 3, 1950, and March 11, 1950, respectively, the defendant prosecutes a separate writ of error in this Court.

By agreement of counsel, who are the same in each, and by leave of this Court, both cases have been argued and submitted for decision together and, as the principal questions presented are identical or closely related, the cases are dealt with in one opinion.

Each case was tried upon an amended declaration which contained two separate counts. The first count alleged negligence upon the part of the defendant in failing to equip its locomotive with a bell or a steam whistle of sufficient power to be heard at a distance of at least sixty rods from a public crossing over its railroad tracks, in failing to ring such bell or blow such whistle and to keep such bell ringing or such whistle blowing for a sufficient time to give due notice of the approach of its train to such public crossing, in permitting trees, brush and shrubbery to grow on its right of way in close proximity to its tracks near such crossing which obstructed the view and prevented plaintiff's decedent from seeing an approaching train until it was dangerously close to such crossing, and in otherwise carelessly, negligently and improperly operating its train as it approached such crossing, and that the negligence of the defendant was the proximate cause of the death of plaintiff's decedent. The second count of the amended declaration alleged that the railroad crossing, at which the collision occurred, was kept and maintained by the defendant for the use of divers and sundry persons residing in a designated subdivision of land on the north side of the railroad tracks and other members of the general public and had been notoriously used by them for a period of about twenty-five years with knowledge and acquiescence of the defendant, and that it was the duty of the defendant to treat such crossing as a public crossing, and charged the same acts of negligence as are set forth in the first count.

A demurrer to the amended declaration, filed by the defendant, assigning as grounds that the allegations with regard to the character of the crossing are contradictory and indicate that the crossing is private rather than public in character, but that the duty of the defendant with respect to a public crossing or private crossing can not be determined from such allegations, and that the various negligent acts alleged show no causal connection between them and the injuries of which the plaintiff complains, was overruled by the court. A motion by the defendant in each case to require the plaintiff to elect which of the alleged acts of negligence he would rely upon at the trial because of duplicity in the allegations of the amended declaration, a motion by the defendant in each case that the jury be permitted to view the scene of the wreck, made at the beginning of the trial and renewed at the conclusion of the evidence and, in the action by the administrator of Josephine M. Stringer, deceased, a request by the jury for such view, a motion by the defendant in each case, made at the conclusion of the evidence offered by the plaintiff and renewed at the conclusion of the evidence, to strike the evidence of the plaintiff and direct a verdict for the defendant, and a motion by the defendant in each case to set aside the verdict of the jury and grant the defendant a new trial, were separately denied by the trial court and exceptions to its action were duly taken by the defendant in each instance.

At approximately 11:52 in the forenoon of March 18, 1948, a 1936 Pontiac brown sedan automobile owned and driven by Jesse P. Stringer in which his wife, Josephine M. Stringer, was riding as his guest, in traveling across the railroad tracks of the defendant at a point some distance east of the City of Huntington, in Cabell County, was struck by an eastbound passenger train owned and operated by the defendant and both occupants of the automobile were instantly killed by the impact of the collision. The point at which the collision occurred was a railroad crossing which had been constructed by the predecessor of the defendant and maintained by the defendant, as one of three separate farm crossings, under a deed by which the predecessor of the defendant obtained the right of way for the railroad and by which it agreed to install and maintain three such crossings. This deed was made by the former owner of a large tract of land on which the right of way for the railroad was located. A part of the large tract of land, lying north of the railroad right of way and immediately east and west of the crossing, in 1921 was made into a subdivision containing fourteen lots; and this subdivision is indicated on a map which was recorded in the office of the clerk of the county court of Cabell County. These lots abut on the north side of a road which extends east and west through the subdivision but which has no outlet by any other road at either end. This road is intersected at right angles by a road which extends south and passes over the railroad at the location of the crossing and connects with a public highway known as State Route No. 2 which parallels the railroad tracks and is located about thirty-five feet south of the tracks. The road which passes over the railroad crossing affords the only vehicular outlet from the road in the subdivision to State Route No. 2, and for many years has been used for that purpose by the persons who comprise from thirteen to sixteen families living in several dwellings in the subdivision and by such other persons as go to and from the subdivision...