Gunn v. Ohio River R. Co.
| Decision Date | 09 December 1896 |
| Citation | 26 S.E. 546,42 W.Va. 676 |
| Parties | GUNN v. OHIO RIVER R. CO. |
| Court | West Virginia Supreme Court |
Submitted September 12, 1896
Syllabus by the Court.
1. The syllabus in Garrett v. Ramsey, 26 W.Va. 345, upon demurrers to evidence, approved.
2. A child of very tender years is not chargeable with contributory negligence.
3. The engineer and fireman of a railroad train must keep a careful lookout on the track ahead to discover persons and animals upon it, and use ordinary care to avoid injury to them.
4. While it may be assumed by the engineer that a person walking upon a railroad track will get off it in time to save himself from injury from a train, yet that is not the rule as to children of very tender years, or persons plainly and obviously disabled by deafness, intoxication, sleep, or other cause from taking care of themselves.
5. Parents' negligence. When it prevents recovery for injury to children.
6. Demurrer to evidence, principles of.
Error to circuit court, Mason county.
Action by W. R. Gunn against the Ohio River Railroad Company. From a judgment for defendant, plaintiff brings error. Reversed.
W. R Gunn, C. E. Hogg, and J. E. Beller, for plaintiff in error.
V. B. Archer, H. P. Camden, and Jas. B. Menager for defendant in error.
Two little boys, Henry C. Mayes, not quite five years old, and Luelza Mayes, about six years old, were killed by a train on the Ohio River Railroad, and this is a suit by the administrator of Henry C. Mayes against the Ohio River Railroad Company to recover damages for his death. The briefs of counsel are elaborate and able, laying down all the propositions arising, and citing all the law necessary for decision, and have been very helpful in the decision of the case.
If Henry C. Mayes had been an adult, no recovery could be had for his death, as he met his sad and early death on the railroad track, and the defense of contributory negligence would defeat recovery; but a child of the tender years of this child is not chargeable with contributory negligence for want of judgment, discretion, and presence of mind to know and avoid danger. Dicken v. Coal Co. (this term) 23 S.E 582; Westbrook v. Railroad Co. (Miss.) 6 South. 321; Bottoms v. Railroad Co., 114 N.C. 699, 19 S.E. 730; Summers v. Brewing Co. (Pa. Sup.) 22 A. 707. The law is clear that those in charge of a train must, by keeping up a reasonable lookout, use fairly ordinary care to discover animals and persons on the track, both to save them and passengers from injury. The public interest and necessity, not merely the company's, demand that the company have sole possession of its track; but, as people live and move along the route, they do go upon the track; children, in their thoughtlessness and indiscretion, will go upon it; stock will wander upon it; and sheer necessity calls for such care as is exacted by this rule. Gunn v. Railroad Co., 36 W.Va. 165, 14 S.E. 465; 2 Wood, Ry. Law, § 320; opinions in Raines v. Railroad Co., 39 W.Va. 50, 19 S.E. 565. Some courts hold that no duty lies on the company to look ahead for persons on the track, as it has exclusive right to its track except at crossings, and they are trespassers; but we have held that there must be a lookout even for live stock and ordinary care to prevent injury to it. Layne v. Railroad Co., 35 W.Va. 438, 14 S.E. 123, and cases. And, certainly, the same care would be required so far as infants, deaf and other disabled persons are concerned, if not as to others. But our court has settled this in cases above cited. If a child trespassing on a railroad track is struck by an engine, the company is liable if the engineer, by such careful and vigilant lookout as is consistent with other duties, could have seen the child in time to prevent the accident. Railroad Co. v. Grablin, 38 Neb. 90, 56 N.W. 796, and 57 N.W. 522; Bottoms v. Railroad Co., 114 N.C. 699, 19 S.E. 730; 2 Wood, Ry. Law, § 320. So if the child is going towards the track, or running near it, evidently going on it. An adult seen upon the track, the presumption is that he will get off, but not so with little children. When they are seen on the track, the duty is to stop and save them. Raines v. Railroad Co., 39 W.Va. 50, 19 S.E. 565; Wood, Ry. Law, § 320; Bottoms v. Railroad Co., 114 N.C. 699, 19 S.E. 730. Such is the law of the subject. What are the rights of the parties under it upon the facts? The defendant withdrew the case from the jury by a demurrer to the evidence. This has an important bearing, as certain principles apply in deciding a case on such demurrer.
A demurrer to evidence by the defendant admits all that can reasonably be inferred by a jury from the plaintiff's evidence, and waives all the defendant's contradictory evidence, or evidence the credit of which is impeached, and all inferences from the defendants' evidence that do not necessarily flow from it. The evidence must be interpreted most favorably to the demurree, so that he may have all the benefit which a verdict in his favor by the jury would give him. In determining the facts inferable from the evidence where there is grave doubt, those inferences or conclusions most favorable to the demurree will be adopted; and, unless there is a decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor. If the evidence is such that, if there were a verdict in favor of the demurree, the court ought not to set it aside, then, on the demurrer to the evidence, the court ought to give judgment against the demurrant. Stolle v. Insurance Co., 10 W.Va. 546; Garrett v. Ramsey, 26 W.Va. 345; Franklin v. Geho, 30 W.Va. 27, 3 S.E. 168; Fowler v. Railroad Co., 18 W.Va. 579. Keeping in mind these principles, let us look at the evidence to see what inferences ought to be made from it. The children were killed on a little trestle over a small stream, while sitting on the guard rail. The turning question is: Had they been there long enough before the train struck them to have enabled the trainmen to see them in time to save them, as the plaintiff claims they had been, or did they go upon the trestle when the engine was within 50 feet or a very short distance of them, too short to save them, as the defendant claims? The engineer says he could see the track for half a mile or more, as it was straight, and he was looking out, and could see over the trestle, and could see nothing on it; that there were some willows near the trestle, which cast a shade over part of it. He says he saw nothing till within 40 or 50 feet of the trestle, when he caught a glimpse of something between the willows or on the trestle (he could not say which), when he sounded the whistle, and it moved, and he saw it was children. He said they were not before on the track to be seen. They were there when killed. We know this. When did they go there? They were sitting astraddle the guard rail when the engine struck them, indisputably. This leaves the inference that they had been there some time. If interest in the train called them from the willows, would they likely have sat down or stood up, alive with interest? If they had so recently gone upon the trestle, is it not reasonable to say that the engineer, on the lookout, as he says, would have seen them,--two children walking? The train was dashing on at 30 miles an hour, and as it would take some time for them to go upon the trestle, and sit down, they must have been on it some time before the engine was within 50 feet; that is, they must have been there when the engine was further distant than that distance. The engineer does not say he saw them going on the trestle, though we would infer from his evidence that they suddenly went upon it. Would he not have seen them that bright June morning at 8 o'clock, with a straight track and unimpeded view for half a mile? If, as he says, the willows shaded one corner of the trestle, tending to prevent his seeing them sitting still, would he not have seen two children moving, in the act of going upon the trestle. The fireman had been engaged in coaling the engine, and, when he finished, he saw the children sitting on the trestle, 40 or 50 feet ahead. Going no further, taking these facts and the statements of these trainmen, I say that the inference that the children were sitting on the trestle some time before the coming of the train is more reasonable than that they suddenly appeared upon it, just before they were struck. And remember, in doubt, we must make the inference most favorable to the demurree. The engineer does not contradict this inference by telling us that he did see them all at once go upon the trestle. The inference does not necessarily flow from his evidence that they did all at once go upon the trestle. Unless there is a decided preponderance of probability or reason in favor of this sudden coming of the children upon the trestle, we cannot make it, but must make the other, under a demurrer to evidence. But add other evidence: A witness says he passed over this trestle, and saw the children sitting upon it, and the train came in, perhaps, 15 minutes, he thought, but was not certain as to the time. There they were sitting when the locomotive struck them. May we not say, there they were yet sitting when it struck them? Had they ever moved? Counsel argues that we cannot make this inference because the uncontradicted evidence of the engineer and fireman is that they were on the lookout, and did not see the children, and we cannot draw inference against positive evidence. But the facts argue against this. The fireman had not looked for a fourth of a mile till he got within 45 or 50 feet, when he saw them. The engineer might have looked, but failed to...
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