Diotiollavi v. United Pocahontas Coal Co.

• Decision Date: 11 March 1924
• Parties: Orlando Diotiollavi v. United Pocahontas Coal Co.
• Court: West Virginia Supreme Court

95 W.Va. 692

Orlando Diotiollavi

v.United Pocahontas Coal Co.

Supreme Court of Appeals of West Virginia.

Submitted March 4, 1924.

Decided March 11, 1924.

1. Negligence Invitation by Goal Mining Company to Miners to Use Railway Track as Passway Held Implied.

Where a coal mining company hauls coal over a railway from its mine to.its tipple, and constructs dwelling houses for its miners facing the track in close proximity thereto with a walk and gate from the front yard opening out onto the track, there being a space of five or seven feet from the gate to the track, and the track has been used by its miners and their families for six years as a means of ingress and egress to the house to and from public places in the near vicinity, with the tacit acquiescence of the coal company, an invitation to the occupants of the houses to enter upon and use the track for ingress and egress will be.implied; and the coal company owes a higher degree of care towards such persons while so using the track than if they were trespassers or licensees., (p. G97).

2. Same Care Required of Coal Mining Company as to Miners' Children

In such case the coal company must use ordinary and reasonable care to prevent injury to its miners' children entering upon the track from such houses occupied by them,.in order to attend a public school. (p. 697).

3. Same-Question of Negligence of Coal Mining Company as to Children of Miners Held for Jury.

Where it is shown that such child while on its way to school and upon the track is injured without contributory negligence on its part, by a loaded coal mine car running from the drift mouth by gravitation without any one in charge thereof and a short distance behind a trip of cars hauled by an electric motor, an inference or presumption of negligence is imputable to the coal company; and if the coal company attempts to rebut that presumption without showing that it used ordinary and reasonable care, the question of negligence is generally one for the jury, and it is error to instruct for defendant. (p. 698).

4. Trial Test for Giving Instruction to Find for Defendant Stated.

In considering the propriety of giving an instruction in such case to find for defendant, the court should be guided by what its action would be if a verdict had been for plaintiff and a motion made for a new trial on the ground of preponderence of evidence for defendant. (p. 701).

Error to Circuit Court, McDowell County.

Action by Orlando Diotiollavi, an infant, by his next friend, against the United Pocahontas Coal Company. From a judgment for defendant, plaintiff brings error.

Judgment reversed; new trial.

Crockett & Sanders, and Sanders, Crockett & Fox, for plaintiff in error.

Strother, Sale, Curd & Tucker, for defendant in error.

Lively, Judge:

From a judgment upon a directed verdict for defendant, plaintiff Diotiollavi, an infant, by his next friend, prosecutes this writ.

The action is for personal injuries sustained by plaintiff while rightfully on defendant's track leading from its drift mine to its tipple, caused by a single car running by gravitation down the track and not properly attended, and which ran over plaintiff without warning.

The accident occurred on November 1, 1921, on defendant's railway track built of wooden ties and steel rails, almost in front of the tenement occupied by the child's! father. This track ran on a 1 1-4% down grade from the drift mouth to the tipple a distance of about eight hundred feet, the point of the accident being about six hundred and fifty feet from the drift mouth. A trip of loaded coal mine cars, about fourteen in number, were being hauled out of the mine to the tipple by an electric motor operated by a motorman, attended by one brakeman. A loaded three-ton coal mine car followed the trip at a distance of probably one hundred and twenty-five feet at the place of the accident. These cars were equipped with brakes on each wheel, and could have been stopped within a distance of about twenty feet when running twelve to fifteen miles per hour. Whether that particular car was a part of the trip and attached to it when it started, or whether it came out of the mine by gravity, is not clear. It appears that a workman in the mine, whose name is given as Page Marshall, was riding this detached car. Plaintiff, who was seven years old, accompanied by his sister a few years older, had come from his father's tenement out onto the track, and evidently had stepped off the track to let the trip pass, and upon stepping upon the track again was run over by the detached car, which cut off his left arm near the shoulder and his thumb and a portion of the index finger of the right hand. The two children were on their way to school after the noon recess, the schoolhouse being located down the track and some distance from it. The trip was moving at ten or twelve miles per hour. The motorman and brakeman, the latter having left the rear end of the trip and gone over the cars to the motor, knew nothing of the accident, and did not discover the detached car, or the car following, until they had neared the tipple, when the speed of the trip was checked and the car caught up with them, the brakeman going back and making the coupling. He says the car then was traveling at four or five miles an hour, and the impact was not great when it struck the rear of the trip. Thence they proceeded to the tipple with the entire train of cars. The brakeman says the trip was made up at the first parting, which was about six hundred feet inside the mine; that he did not couple the ears, that being the duty of the driver; that he rode the rear car until it reached the drift mouth when he walked over the cars to the motor in order to be at the front end when the trip reached the cut-off at the tipple, to perform some duty there. He says another employee of the company was on the rear car when it came out of the mine. This employee, Page Marshall, was not examined as a witness. "Whether the detached ear was ever coupled to the trip of cars or if coupled, when, where, or in what manner it became uncoupled, is a matter of conjecture. It appears that there is a down grade from the first parting where the trip started until the tipple is reached. The motorman was not examined. The only witness introduced by defendant was the brakeman from whose evidence the facts above regarding the detached car until it reached the place of the accident, are gathered.

The mine, track, tipple and miners' houses are all on the company's lease..Six of the miners' houses, one being occupied by the child's father, were constructed near the track about six hundred and fifty feet from the drift mouth, and fronting the track, each enclosed by a fence with a gate opening out onto the track. The distance between the gate and the track is five and a half feet to the end of the ties. A photograph of the premises introduced in evidence shows a walk running from the gate of one of these houses across the space between the fence and the railroad. This walk appears to be in front of the house next to where plaintiff lived. There is evidence to show that the space between the yard fences and the track (parallel with and adjoining the track) was not used by pedestrians because of its rough condition and obstructions thereon preventing its convenient use. That is, there was no passage way beside the track over this space between the fences and the track. The photograph shows at least one miner's house on the opposite side of the track from these six houses mentioned, but whether there is more than one does not clearly appear. One witness, Mabel Kiser, who saw the accident, was sitting across the track from plaintiff's house, but whether she was in her own tenement does not appear. At the rear of these six tenements ran a public road used by vehicles, motor cars and pedestrians, and onto which gates at the rear of the tenements opened. The schoolhouse and store were located down the track from these miners' houses, a distance not disclosed by the record. The railroad track was not a way of necessity. However, it appears that the track had been constantly used for about six years at the point of the accident and between that point and the school house and store by the miners and their families, and their children in attendance upon the school, without objection on the part of defendant. The miners used this track in going to and from their labor in the mine. Plaintiff's father was a miner in defendant's service.

The declaration charges that by reason of the construction and location of the miner's houses they were appurtenant to the track, intended so to be, and by reason of the continued use and occupancy of the track by the miners, their children and families in passing to and from the nearby tenements, schoolhouse and other public buildings, it became the duty of defendant to exercise due and reasonable care in the operation and management of its trains of cars upon the track to prevent injury to its employees and their children while using it; and that defendant, by its carelessness and negligence in the operation of its coal cars in the manner set out, caused the injury complained of.

Two controlling questions are presented: (1) Do the facts and circumstances impose upon defendant the duty to exercise reasonable care in the operation of its motors and coal cars over its track in order to prevent injury to the children of its employees while using the track? Are the children of defendant's employees licensees, trespassers, or in the relation of invitees while on the track? (2) If under the facts and circumstances plaintiff was an invitee and not a licensee or trespasser, has it been sufficiently...