Hall v. Monongahela West Penn Pub. Serv. Co

Citation37 S.E.2d 471
Decision Date05 March 1946
Docket NumberNo. 9732.,9732.
CourtSupreme Court of West Virginia
PartiesHALL. v. MONONGAHELA WEST PENN PUBLIC SERVICE CO.

37 S.E.2d 471

HALL.
v.
MONONGAHELA WEST PENN PUBLIC SERVICE CO.

No. 9732.

Supreme Court of Appeals of West Virginia.

March 5, 1946.


Syllabus by the Court.

1. "One not in the employ of a railroad 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, Adm'r, v. Baltimore & Ohio Railroad Co., 83 W.Va. 449, 98 S.E. 526. Such a duty is no higher than not wantonly or wilfully to injure such pedestrian.

2. 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.

Error from Circuit Court, Marion County.

[37 S.E.2d 472]

Trespass on the case by Edna Bell Hall, administratrix of the personal estate of Thomas Hall, deceased, against the Monon-gahela 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 and cause remanded with directions.

Ernest R. Bell, of Fairmont, for plaintiff in error.

Alfred R. Putnam, of Fairmont, 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-Montana 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...

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