Jameson v. Norfolk & W. Ry. Co

• Decision Date: 09 September 1924
• Docket Number: (No. 5016.)
• Citation: 124 S.E. 491
• Court: West Virginia Supreme Court
• Parties: JAMESON . v. NORFOLK & W. RY. CO.

124 S.E. 491

JAMESON .

v.NORFOLK & W. RY. CO.

(No. 5016.)

Supreme Court of Appeals of West Virginia.

Sept. 9, 1924.

(Syllabus by the Court.)

The negligence of the driver of an automobile cannot be imputed to a passenger, but the passenger must use such reasonable care for his own safety as an ordinarily prudent person would exercise under like circumstances.

It is the duty of a passenger of mature years and in full possession of his faculties, when approaching a public railway crossing in an automobile, to use reasonable care to observe an approaching train.

When the facts proved clearly show that a passenger in an automobile, of mature years and in full possession of his faculties, was killed at a railway crossing by a train, and that decedent had full opportunity to see and hear the approaching train in time to warn the driver of the automobile, so as to enable him to avoid the injury or to enable the decedent himself to avoid the injury by the exercise of due care, and he neither warned the driver nor took any precaution for his awn safety, the decedent was guilty of contributory negligence as a matter of law.

(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, McDowell County.

Action by Cabel Jameson, administrator, against the Norfolk & Western Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Cecil H. Riley and F. C. Cook, both of Northfork, for plaintiff in error.

F. M. Rivinus, of Philadelphia, Pa., and Strother, Sale, Curd & Tucker, of Welch, for defendant in error.

MEREDITH, P. Plaintiff, as administrator of the estate of Charlie Jameson, deceased, sued to recover damages for the wrongful death of his decedent, based upon defendant's alleged negligent operation of one of its trains at a highway crossing. After hearing the evidence on both sides of the case, the circuit court directed that the jury return a verdict for the defendant. To the judgment entered upon the directed verdict plaintiff prosecutes this writ of error.

The declaration alleges defendant's ownership and operation of an interstate railroad, extending through the county of McDowell in this state, and that said railroad crosses a state highway at a public crossing at Eckman in said county. It then alleges that on November 28, 1922, plaintiff's decedent was traveling on said highway in an automobile owned and operated by one J. H. Taylor, and that defendant, through its agents and employees in charge of one of its trains, disregarding the duty imposed upon it by law to give proper warning signals, carelessly, and without having given such signals, drove its train upon the crossing at a speed of 30 miles or more per hour, striking the automobile in which plaintiff's decedent was riding, and which was being operated by said Taylor in a careful and prudent manner, and inflicted upon said decedent injuries from which he died instantly. Plaintiff claims damages in the amount of $3,000.

Whatever the record may show the facts to be, there can be but one question for us to decide; that is, whether the evidence was sufficient to make out a case for the jury And in reviewing the matter here, we are governed by the principle firmly established that, in considering a motion to direct a verdict for defendant, all of defendant's evidence in conflict with that of plaintiff must be discarded. If when stripped of this conflict all of the inferences which the jury could justifiably deduce from the evidenceare taken into consideration, and are not sufficient to sustain a verdict in favor of plaintiff, then a direction to And for defendant is proper. Estep v. Price, 93 W. Va. 81, 115 S. E. 861, and cases there cited.

What conclusions and inferences then can properly be drawn from plaintiff's evidence?

The driver of the car, Taylor, was but slightly injured, so it is upon his testimony that plaintiff chiefly relies. He testifies that he started from the town of McDowell between 8 and 9 o'clock in the evening, intending to drive to the Tidewater Works, near Kimball, a few miles west of McDowell. He carried some clothes with him, and testifies that he was in a rush to reach his destination. Decedent seems to have gone along to enjoy the ride. Having passed Northfork, they drove gently about 2 miles to the small town of Eekman; they drove over a winding road through that town, passed the railway station, and turned sharply to the right towards the main line right of way. Thence they turned to the left, paralleling the tracks for a distance, not shown in the testimony, but which we judge from the photographs introduced to be from 50 to 100 feet, and having crossed a short concrete bridge, they turned again to the right at an angle of almost 90 degrees, from which angle they drove almost due north some 40 or 50 feet to the crossing. They crossed the first or east-bound track in safety, but when full upon the second or west-bound track they were overtaken by one of defendant's fastest trains. The automobile, a Ford roadster, was demolished, and decedent received injuries from which he died shortly after.

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