Hall v. Monongahela West Penn Pub. Serv. Co.

• Decision Date: 05 March 1946
• Docket Number: (No. 9732)
• Citation: 128 W.Va. 547
• Parties: Edna Bell Hall, Admx., etc. v. Monongahela West Penn Public Service Company
• Court: West Virginia Supreme Court

128 W.Va. 547

Edna Bell Hall, Admx., etc.

v.Monongahela West Penn Public Service Company

(No. 9732)

Supreme Court of Appeals of West Virginia.

Submitted January 15, 1946.

Decided March 5, 1946.

1. Railroads

"One not in the employ of a railway company, using its tracks as a walk way over a portion thereof which pedestrians are accustomed to use for such purpose, but not at a public crossing, is at most a mere licensee, and such railway company owes to him no higher or other duty than it owes to a trespasser." Pt. 1, Syl., Blagg, Admr. v. Baltimore & Ohio Railroad Co., 83 W. Va. 449. Such duty is no higher than not wantonly or wilfully to injure such pedestrian.

2. Trial

In an action against an electric railway company to recover damages for the death of a pedestrian, not one of defendant's employees, who was struck by one of defendant's interurban cars at a point on its tracks other than at a public crossing, or on a public street or road, it was proper for the trial court to refuse to give an instruction based upon the last clear chance doctrine which would have submitted to the jury the question whether "under the circumstances in the exercise of reasonable care and prudence [the motorman] should have known and realized * * * [decedent's] imminent danger and peril, and that he was obviously oblivious of said danger, in time that said motorman could have avoided and prevented injury and death to * * * [decedent] by the use of reasonable care under the circumstances." In such case, the motorman's duty to use reasonable care to avert injury arises only after actual discovery of decedent in a position of peril.

Haymond, Judge, absent.

Error from Circuit Court, Marion County.

Trespass on the case by Edna Bell Hall, administratrix of the personal estate of Thomas Hall, deceased-against the Monongahela West Penn Public Service Company to recover for the wrongful death of decedent. To review a judgment setting aside a verdict for defendant and awarding plaintiff a new trial, defendant brings error.

Judgment reversed; verdict reinstated; remanded with directions.

Ernest R. Bell, for plaintiff in error. Alfred R. Putnam, for defendant in error.

Riley, Judge:

This is an action of trespass on the case instituted by Edna Bell Hall, Administratrix of the personal estate of Thomas Hall, deceased, against the Monongahela West Penn Public Service Company, a corporation. The trial court set aside a verdict for defendant and awarded plaintiff a new trial on the ground that the latter's instruction embodying the doctrine of last clear chance should have been given. The defendant prosecutes error.

Hall was struck and killed by one of defendant's cars on its Fairmont-lMontana interurban line. The fatality occurred within the town of Rivesville at a point where defendant's tracks cross Pharoah's Run. A concrete arch culvert provides the base for twenty-one feet of the tracks at this crossing. One hundred eighty-five feet to the east of this culvert the tracks cross Jackson Street. To the southwest of this intersection is a "waiting shed", spoken of frequently as "Stop 97". From. Jackson Street to a point approximately two hundred feet to the west of Pharoah's Run the tracks are on the private property of defendant. From Stop 97 to the center of the culvert the tracks are straight. At the latter point a curve begins, its point of tangent being three hundred sixty feet to the northwest. On the south side of the tracks at the culvert a wooden walkway with side rail is maintained for the protection of employees engaged in switching cars on and off a siding running to the south of the main line a short distance to the east of the culvert. On the map introduced on behalf of defendant, and from its evidence, plaintiff's decedent, at the time he was struck, was on the portion of the tracks over the concrete culvert, to be exact, seven feet east of the point of curve, and five feet west of the easternmost edge of the culvert. Using this position as a starting point, the point of the switch, referred to above, is twenty-eight and nine-tenths feet to the east; and one hundred ten feet to the west a pole stands to the south of the tracks on which is a "whistle sign". The car involved was forty-three feet in length and of a two-truck type, with eight wheels.

Just before he was killed, Hall had asked plaintiff's witness, Brady, who was waiting in the shed at Stop 97, for a match with which to light a cigarette. Shortly thereafter Brady observed Hall walking in the center of the tracks toward the culvert, his purpose, as testified to by other witnesses for plaintiff, being to meet certain members of his family who were attending a picture show several blocks to the west in Rivesville. The interurban car approached from the west. The night was dark and rain was falling.

According to Bragg, a passenger, one of the plaintiff's witnesses, the deceased was observed from a point one hundred thirty to one hundred seventy-five feet just east of and walking toward the culvert, with his head down so that his cap shaded his eyes. This witness testified that he called the motorman's attention to the presence of a man on the track, and the latter turned around, looked at witness and said, "Who is running this car me or you? * * * about that time he hit and I says, 'There, you have killed a man.' "; that the motorman did not apply the brakes until after he had struck Hall; that the car was being operated at a speed of thirty to thirty-five miles an hour; and that no whistle or bell was sounded. A number of other witnesses testified that the car came to a very sudden stop, and that the motorman did not blow any whistle.

The motorman estimated the speed of the car at fifteen to twenty miles an hour. He testified that the headlight first revealed decedent when the car was within forty to fifty feet of him; that the emergency brakes were applied promptly; that the car came to a stop about thirty feet beyond the "throw" of the switch; and that at the point of the switch decedent's body was found between the wheels of the rear truck of the car after it had stopped. He further testified that he was sounding the whistle, and had just finished, at the time he first saw decedent; that the latter was standing in the middle of the tracks, facing the platform to the south of...