Humphrey v. Va.N Ry. Co, No. 9944.

• Court: Supreme Court of West Virginia
• Writing for the Court: RILEY, President
• Citation: 54 S.E.2d 204
• Parties: HUMPHREY. v. VIRGINIAN RY. CO.
• Docket Number: No. 9944.
• Decision Date: 18 December 1948

54 S.E.2d 204

HUMPHREY.
v.
VIRGINIAN RY. CO.

No. 9944.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1948.
Decided Dec. 18, 1948.

Dissenting Opinion June 21, 1949.

[54 S.E.2d 205]

[COPYRIGHT MATERIAL OMITTED].

[54 S.E.2d 206]Syllabus by the Court.

1. Under Section 8, Chapter 40, Acts of the Legislature of West Virginia (1st Ex. Sess.), 1933, it is the absolute and peremptory duty of a railroad company, where its railroad crosses any state road, to construct and maintain its own roadbed and the bed of the road at such crossing in proper repair so as to give a safe and easy approach over said state road and across the railroad.

2. In an action for personal injuries based upon the violation of a statutory duty, it is unnecessary for plaintiff expressly to plead or cite the statute. In such case it is sufficient that the allegations of the declaration set forth the duty provided by the statute and its violation, resulting in the alleged injuries.

3.In an action to recover for personal injuries resulting from a railroad company's failure to perform its statutory duty under Section 8, Chapter 40, Acts of the Legislature of West Virginia (1st Ex.Sess.), 1933, to construct and maintain its roadbed and the bed of a state road at a point where the railroad crosses the state road in proper repair so as to give a sale and easy approach over the state road and across the railroad, where the railroad company and its employees, named in the declaration, are sued as joint tort feasors, and the verdict is against the railroad company, but acquits the employees, the verdict will not be set aside under the doctrine of respondeat superior, unless it be shown that,, the alleged injuries were occasioned by the act or neglect of the employees, and the railroad company could in no way be liable except for that act or neglect.

4. Where, in an action for personal injuries, plaintiff seeks to recover damages against a master and his employee, liability of the master is not predicated solely upon the employee's negligence, but upon the negligence of another employee, or that of the employer himself, a verdict against the employer and exonerating the employee is not inconsistent.

5. Where, in an action for personal injuries, the declaration contains two counts asserting two theories of liability and, on the trial, evidence is introduced to support both theories, and the court instructed the jury on both theories, a general verdict awarding entire damages will not be set aside.

6. It is not reversible error for a trial court to give abstract instructions, where the instructions are not prejudicially misleading or inapplicable to the case as pleaded in the declaration.

FOX and KENNA, JJ., dissenting.

Error to Circuit Court, Fayette County.

Action by Alfred Humphrey against the Virginian Railway Company and others to recover damages for personal injuries. Judgment for plaintiff against the named defendant, and the named defendant brings error.

Affirmed.

William L. Lee, Fayetteville, John R. Pendleton, Princeton, for plaintiff in error.

Carl B. Vickers and Howard W. Carson, Fayetteville, for defendant in error.

RILEY, President.

Plaintiff, Alfred Humphrey, instituted this action in the Circuit Court of Fayette County against The Virginian Railway Company, C. T. Wade, B. L. Murphee, Ray Thompson and Cecil Terry to recover damages for personal injuries, which included the loss of both legs above the knees, a fractured scapula and numerous bruises and lacerations. The jury rendered a verdict against the railway company in the sum of forty thousand dollars and acquitted the individual defendants. To the judgment against it, based upon the jury verdict, the railway company prosecutes this writ of error.

The declaration, consisting of two counts, charged, and the evidence established, that

[54 S.E.2d 207]

plaintiff was injured by a train of the defendant railway company on or adjacent to the west end of a public crossing at Willis Branch, Fayette County. The first count of the declaration, directed against the railway company, C. T. Wade, its engineer, and its fireman, B. L. Murphee, and other agents, servants and employees unnamed in the declaration, charges plaintiff's injuries to the negligent operation of the train by defendant's said engineer and fireman and "other agents, servants and employees" of defendant corporation; and the second count of the declaration charges that the railway company and the defendants, Thompson and Terry, its section foreman and road master in charge of the construction and maintenance of the crossing and defendant's railway tracks, respectively, and other agents, servants and employees, carelessly and negligently failed to perform the alleged duty of inspecting, keeping, repairing and maintaining the crossing in a safe and usable condition, as a result of which plaintiff caught his left foot between the plank of the crossing and the rail so that he was struck by defendant's train before he could extricate himself.

At the place of the injury, defendant's railway runs in a generally east-west direction and a public road parallels the railroad on its north side about twenty-five feet therefrom, from which a secondary dirt road runs up a sharp incline and diagonally crosses the railroad at the crossing in question in a generally south-east direction toward Willis Branch, Fayette County. The crossing is constructed of hard-surfacing material and oak boards five inches thick, ten inches wide and twenty-four feet long, placed on both sides of each rail. These boards rest on one and two-inch shims placed on the ties and fastened by twelve-inch spikes driven through the boards and shims into the ties. The outside boards are placed against the rail, but, in order to accommodate the flanges of the train wheels, the inside boards are placed approximately two and one-half inches from the rails. Between the inside boards, the crossing, for a width of fourteen feet is covered with rock ballast with a layer of asphalt next to the rail, and the ends of the inside boards are beveled about seven inches. The beveling is required, according to defendants' evidence, to lessen the danger of the brake, rigging and other underlying parts of the locomotive and cars striking the boards. At the end of the inside board, between which and the rail, plaintiff claims his foot became caught, the board slants from two inches at the side nearest the rail to three and one-half inches at the far side. At the time and place plaintiff claims his foot was caught, this board extended somewhat beyond the hard surface of the crossing, though there is substantial evidence introduced by defendants, that at the time the crossing boards were originally placed the hard-surfacing extended to the end of the boards. The rails at the point in question are seven and one-half inches high, and, according to plaintiff's evidence, which in view of the jury verdict must be taken as true, the tops of the rails are one and one-half inches higher than the inside board. The top of the rail is one and one-half inches in depth and extends one and one-eighth inches from the web of the rail making a space on slanting angle from the near side of the board to the bottom of the rail of approximately five and one-fourth inches.

As the train, consiting of fifty-seven loaded coal cars, seven of one hundred tons each and fifty of fifty tons and a caboose, with an engine pulling in front and two in the rear engaged in pusher service, approached the crossing from the west going in the direction of Pax, it was on an upgrade of one-tenth of one per cent, with a curve of approximately four degrees leading into a tangent at three hundred twenty-eight feet from the west end of the crossing. As disclosed by an actual test made at night with a locomotive of the type involved in this action, the crossing could be seen for the first time at the front of the locomotive on the engineer's side at a distance of two hundred sixteen feet ten inches, and from the fireman's side at three hundred ten feet six inches. Defendants' evidence is to the effect that after emerging from the curve at night a short interval of time is required for the engineer and fireman to focus their eyes on the site of the crossing.

[54 S.E.2d 208]

Shortly before plaintiff was struck, it had been raining and there was a rising mist. As the train approached the crossing, it was travelling at a speed of twenty to twenty-five miles an hour. The engineer Wade testified that if the tracks and wheels were dry, the train would travel a thousand feet before it could be brought to a stop and twelve hundred to thirteen hundred feet would be required if the rails were wet. But other witnesses testified variously to the distance in which the train could be brought to a stop. One of plaintiff's witnesses testified that the train could be brought to a stop on dry tracks at three hundred feet, and several other witnesses, two of whom testified for the plaintiff, gave the distance required to stop at four to twelve hundred feet in dry weather, and farther if the rails and wheels were wet.

On Saturday evening, July 14, 1945, plaintiff, after attending a picture show at Pax, a town a short distance east of the crossing, went to Long Branch to a pool room, immediately west of the crossing, where beer was served. He remained there until the proprietor closed the place at midnight. While there he said he drank four or five bottles of beer, but one witness, W. E. Sweeny, testified that plaintiff and one Jack Penn, a colored man, were drinking what witness thought was moonshine whiskey, and that plaintiff was intoxicated. Plaintiff denies this, and asserts he was not intoxicated. Other witnesses testified variously as to whether plaintiff was, in fact, intoxicated. After the closing of the pool room, plaintiff and Jack Penn went to the latter's home, where they played cards until nearly two o'clock Sunday morning, when plaintiff...