Gulf Transp. Co. v. Va.n Ry. Co.

• Decision Date: 16 February 1932
• Docket Number: (No. 7178)
• Citation: 111 W.Va. 544
• Court: West Virginia Supreme Court
• Parties: Gulf Transportation Company v. Virginian RailwayCompany

111 W.Va. 544

Gulf Transportation Company

v.Virginian Railway Company

(No. 7178)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1932.

Decided February 16, 1932.

Railroads

"Where the circumstances require a traveler to stop as well as to look and listen before entering upon a railroad crossing, the act of stopping must be of such duration and under such conditions, within his control, as will reasonably insure an effective exercise of the senses of sight and hearing." Maynard V. Chesapeake & Ohio Ry. Co., lll W. Va. 372, 162 S. E. 171, decided by this Court December 8, 1931.

Error to Circuit Court, Raleigh County.

Action by the Gulf Transportation Company against the Virginian Railway Company. Judgment in favor of the plaintiff, and the defendant brings error.

Judgment reversed, verdict set

aside, and a newtrial awarded.

McGinnis & Ashworth, and Harry C. Ellett and John R. Pendleton, for plaintiff in error.

John Q. Hutchinson, for defendant in error.

Litz, Judge:

The Gulf Transportation Company, a corporation suing in trespass on the case, recovered judgment of $250.00 against defendant, Virginian Railway Company, for damage to a motor bus (owned and operated by plaintiff) when struck by a passenger train of defendant at a public crossing.

The accident occurred about 7:30 A. M., August 28, 1930, in Raleigh county. Russel Carter, driver of the bus, testifying for plaintiff, stated that in approaching the crossing, he stopped the bus (within ten feet therefrom) long enough to shift gears, look and listen; and that upon hearing no crossing signals or other warning of the approach of a train, proceeded over the crossing at six miles per hour. The bus, before clearing the track, was struck by a locomotive of defendant traveling west in reverse down grade, about fifteen miles per hour, attached to a baggage car and passenger coach. From the point where the bus stopped before entering upon the crossing, the driver could have seen 180 feet in the direction of the train. Three other witnesses for plaintiff testified as follows: W. T. Cook, who was in a store building, owned by Minter Coal Company, sixty feet from the crossing, at the time of the accident, stated that he heard the whistle of the locomotive immediately before the bus drove up to the crossing, but did not hear a bell signal. Doyle Minter, who was with Cook, testified in chief that he did not hear the whistle or the bell; but upon cross-examination, admitted that a written statement signed by him the day after the accident, in which he had stated that he heard the whistle blow for the crossing, was correct. Ethel Hebb testified that she was in her home 100 yards from the crossing rocking her baby to sleep and heard the train running, but did not hear the whistle or the bell.

J. E. Dunlap, engineer of the train, stated that a crossing signal (two long and two short blasts of the whistle) was given 1300 to 1500 feet from the crossing and followed by a station signal (one long blast); that the crossing signal was repeated two or three hundred feet from the crossing; and that the bell was rung at the time of the first crossing signal and continued ringing up to the time of the collision. He was corroborated by the fireman and brakeman. The conductor and express messenger said they heard the whistle, but did not recall hearing the bell. Four other witnesses for defendant (all of whom were apparently disinterested), testified as follows: W. S. Honaker (partially deaf) said he heard the whistle blow three or four times as he left the Minter Coal Company store, and that he had walked thirty or forty yards from the time he heard the first blast, before the collission; but he did not hear the bell. Leonard Poe, who was probably 500 feet from the crossing, testified that he heard the whistle blow at the tipple (about 1400 feet from the crossing); but did not recall hearing the bell. This witness also testified that he heard the train running before the whistle was blown. Mrs. Earthy Brown said the train blew "several times," but she did not hear the bell. Mrs. Valley Brown asserted she "never noticed how many times" it blew, but "it seemed" like...