Huff v. Chesapeake H Ohio Ry. Co.

• Decision Date: 14 April 1900
• Court: West Virginia Supreme Court
• Parties: Huff v. Chesapeake h Ohio Ry. Co.

48 W.Va. 45

Huff

v.Chesapeake h Ohio Ry. Co.

Supreme Court of Appeals of West Virginia.

Decided April 14, 1900.

1. Railroad Track Trespass Thereon.

A person using a railroad track as a footpath for his own convenience, elsewhere than at a lawful crossing, and injured by a train while so doing, cannot recover damages of the railroad company, unless it be guilty of wa iton or gross negligence. Spicer v. Railway Co., 12 S.B. 553, 34 W. Va. 514, 11 L. R. A. 385. (pp. 46, 47).

2. Signal Whistle Bell for R. R. Crossing.

The statute (Code, chapter 54, s. 61), requiring the bell to be rung or a whistle to be blown at crossings, is designed for those passing over the tracks at such crcssings, not for those using the track elsewhere for their conveniance as a footpath. Spicer v. Railway Co., 12 S. E. 553, 34 W. Va. 514, 11 L. R. A. 385. (p. 49).

Error to Circuit Court, Kanawha County. Action by William Huff against Chesapeake & Ohio Railway Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

E. W. Wilson and A. B. Littleiage, for plaintiff in error. Simms & Enslow, for defendant in error.

Brannon, Judge:

William C. Huff brought an action in the circuit court of Kanawha County against the Chesapeake and Ohio Railway Company, and upon a demurrer by the defendant to the plain- tiff's evidence, judgment was given for the defendant, and the plaintiff appeals.

Huff was at Montgomery, and walked down the track from that point to Handley, in company with two other persons. They were in what is called the "yard" of the railroad company at Handley, where there were numerous railroad tracks, and where numerous trains passed east and west on that great railroad, and there was a shifting engine, pulling cars and trains here and there at all hours. This yard was in constant use by the railroad company in the transaction of its business. Between eight and nine o'clock of the night of March 24, 1895, when Huff and his companions had reached a point close to the roundhouse, where engines were housed, they met an east-bound freight train, and stepped out of its way, and, when it had passed them about half its length, the yard engine, backing into the roundhouse on another track alongside of that occupied by the freight train, ran over Huff, who was on its track, cutting off one leg and the foot of another leg. It thus plainly appears, and is not questioned, that when Huff received his injury he was making use of the track as a footpath on ground owned and occupied by the company, and absolutely necessary for it in the transaction of its business, and ground which it was necessary that the company should have absolute control over. Thus, Huff was, in every sense, a trespasser on that ground, without the slightest color of right to be there. Several hundred yards from the point of accident the company had placed signal boards of warning, telling everybody to keep off the tracks of that yard, as trains might be expected in it at any time, and that it was a dangerous place. But who would want any signal board of such warning? That yard, that was full of tracks, constantly in use by passing trains, and in switching, making up, and handling trains, and dotted with switch lights showing the various tracks. A railroad track anywhere is alone a warning of great danger; but how much more dangerous is that yard at Handley, full of tracks, trains, and engines at all times or at any time? We may safely say that scarcely anywhere on earth, in broad daylight, could a more dangerous place be found; but how much more dangerous still between eight and nine o'clock of a dark March night? Huff went right into the jaws of death, with his eyes and senses open, and thus committed an act of the grossest negligence, an act full of danger not only, but full of suicidal rashness, on his part.

Our cases decided this case for the defendant. In Spicer v. Railway Co., 34 W. Va. 514, (12 S. E. 553), 11 L. R. A. 385, we held that "a person using a railroad track as a footpath for his own convenience, elsewhere than at a lawful crossing, and injured by a train, cannot recover damages of the railroad company, unless it be guilty of wanton or gross negligence." The many authorities referred to in that case will support this position. Shear. & R. Neg. s. 480, says: "The use of a railroad track, cutting, or embankment, not occupying a highway, or being at a lawful crossing of public roads or highways, is exclusively for the company and its employes; and it is therefore an act of negligence to travel laterally upon it, even though it is entirely uninclosed and opens on a highway." ^here was the public turnpike road a few yards distant from the track, leading to the point to which Huff was going. Why did he not use it? Situated as Huff was, having entered upon the company's property voluntarily and against its will, he was bound, for motives of selfpreservation, to keep the most astute lookout. That late and great work, Elliott on Railroads (section 1258), says: "If one who is not an employe, without the; knowledge or consent of the company, goes into its yard, which is interlaced with tracks, upon which engines and cars are being switched and changed, he must use care commensurate with the peril in which he has placed himself, and the company owes him no duty except not to injure him willfully, or by negligence, aft3r its employes see his danger and inability to escape in time.to prevent such injury by the exercise of due care. The switch yard of a railroad company is usually even a more dangerous place than the right of way, where there is but a single track, and, as it is likely to be in continuous use by the company in switching, storing, and repairing cars, making up trains, or the like, there is perhaps still less reason for implying a license or invitation to strangers to use such premises than in the case where there is but a single track." Huff says he looked back to see if any trair. was coming. Where is the plausibility in that statement, when we know from his own evidence that the freight train had a brilliant headlight flooding with light the track on which that yard engine was slowly backing into the roundhouse, tender in advance of it, the roundhouse being only a few yards away. The freight train had not yet passed him its full length, when he was struck, and it is a strong probability, arising, not from any oral testimony of the company, but from the nature of the case as stated by Huff himself, a physical or natural probability, that, if he had shown the slightest care, he would have seen that engine, because he could have seen it. At any rate, suppose he looked, and did not see it; is the company to blame for that? It...