Fitzgerald v. Chesapeake & O. Ry. Co.
| Decision Date | 07 May 1935 |
| Docket Number | 8087. |
| Citation | 180 S.E. 766,116 W.Va. 239 |
| Parties | FITZGERALD v. CHESAPEAKE & O. RY. CO. et al. |
| Court | West Virginia Supreme Court |
Submitted April 17, 1935.
Rehearing Denied July 25, 1935.
Syllabus by the Court.
A railway company, by removing an injured trespasser from a place of danger into the immediate care and custody of friends willing and able to execute the charge, is not liable for alleged unreasonable delay thereafter in his removal to a hospital for treatment.
Error to Circuit Court, Kanawha County.
Action by Lois Fitzgerald, as administratrix of Robert Lee Fitzgerald, deceased, against the Chesapeake & Ohio Railway Company and others. Judgment for plaintiff, and defendants bring error.
Judgment reversed, and new trial awarded.
Fitzpatrick Brown & Davis and C. W. Strickling, all of Huntington, for plaintiffs in error.
J Blackburn Watts, of Charleston, for defendant in error.
LITZ President.
Defendants Chesapeake & Ohio Railway Company, B. H. Morgan, and H. J Davis, are aggrieved by the judgment of the common pleas court of Kanawha county, upon the verdict of a jury for $6,250 against them in favor of plaintiff, Lois Fitzgerald, as administratrix of Robert Lee Fitzgerald, deceased, for alleged wrongful death of the decedent.
Fitzgerald H. L. Linville, Thelma McKinley, and Hazel Shepherd, of the village of Spring Hill, Kanawha county, visited the city of Charleston together January 29, 1930. They separated at 1418 Crescent road in Charleston about 5 p. m.; the women taking a bus or interurban car for home, while Linville and Fitzgerald, accompanied by a dog, started afoot to Spring Hill. Fitzgerald becoming so intoxicated, en route, that he could not walk, Linville left him and the dog about 7:15 p. m. near the tracks of the railway company in South Charleston and boarded an interurban street car for Spring Hill to secure assistance. Between 7:40 and 7:50 (according to his testimony), defendant H. J. Davis, yardmaster of the company, discovered Fitzgerald, who had been struck by an engine or car of the company, lying on or near the tracks with his left leg severely macerated and his left hand seriously injured. Davis summoned other railway employees (including defendant Morgan), who, at his direction, had picked Fitzgerald up and were carrying him toward an open air fire, some 200 feet distant, when Linville returned with the McKinley and Shepherd women. Linville joined with the railway employees in carrying Fitzgerald and placing him on cindered ground near the fire. The night was cold and one of the women covered him with her coat and pillowed his head in her lap, awaiting a means of conveyance to the hospital. After directing the removal of Fitzgerald to the fire, Davis notified the South Charleston police station of the accident. He was informed by the mayor that the police car would be sent to remove Fitzgerald as soon as it came in from a trip. Linville, leaving Fitzgerald in charge of the women, started to a nearby phone to call an ambulance. On the way, he met Davis, who advised him of the call to the South Charleston police station. Without calling an ambulance, Linville made arrangements by phone with the Dunn Hospital of South Charleston for receiving Fitzgerald and returned to the fire where he was still lying. The police car being delayed, a young man from the neighborhood, at...
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