Keller v. Norfolk

• Decision Date: 21 October 1930
• Docket Number: (No. 6720),(No. 6704)
• Citation: 109 W.Va. 522
• Court: West Virginia Supreme Court
• Parties: Jess Keller, Infant, etc. v. Norfolk & Western RailwayCompany, et als.AndLena Keller, Admrx., etc. v. Norfolk & Western RailwayCompany et als.

109 W.Va. 522

Jess Keller, Infant, etc.

v.Norfolk & Western Railway

Company, et als.

And

Lena Keller, Admrx., etc.

v.Norfolk & Western Railway

Company et als.

(No. 6704)

(No. 6720)

Supreme Court of Appeals of West Virginia.

Submitted October 15, 1930.

Decided October 21, 1930.

(Rehearing Denied December 2, 1930)

1. A verdict based on oral testimony which is wholly inconsistent with undisputed physical facts, should be set aside.

2. When a plaintiff is negligent and his negligence concurs and cooperates with that of the defendant, as a proximate cause of the injury complained of, he cannot recover.

Error to Circuit Court, McDowell County. Separate actions by Lena Keller, administratrix of H. C. Keller, deceased, and by Jess Keller, an infant, against the Norfolk & Western Railway Company and others. Judgments in favor of plaintiff J ess Keller and adverse to Lena Keller, as administratrix, were rendered in the respective cases, and parties cast bring error.

Judgment affirmed in the case in which Lena Keller, administratrix, was plaintiff, and reversed in the case in which Jess Keller was plaintiff.

J. Powell Boyall and Strother, Sale, Curd & St. Clair, for defendant in error.

F. M. Bivinus, Crockett & Tucker and Goodykoontz & Slav en, for plaintiff in error.

Hatcher, Judge:

Damages for alleged wrongful death of H. C. Keller and for physical injuries to Jess Keller, respectively, are sought in these cases. A verdict for the administratrix of H. C. Keller was set aside, and one for Jess was sustained by the trial court. These actions arise from the same accident, have substantially the same evidence, and will accordingly be dealt with in one opinion.

About eight o'clock on the morning of April 16, 1929, H. C. Keller and his three sons, Clay, Charles and Jess, aged eighteen, thirteen and ten years, respectively, started across a private railroad crossing in a Ford roadster. The ear was struck from the right by a regular passenger train of defendant (running on time) causing the death of Keller and injuries to Jess. Clay was on the left of the seat, driving the car; the father was on the right, and the little boys were between them. Clay testified that he looked for and saw no train before going on the crossing; that in watching for a train he allowed the car to get a little off the crossing; that the rear wheels were checked by the second rail, stalling the engine and leaving the rear part of the car (only) on the track; that he then looked again and saw no train, but did not look any more; that while trying to start his engine, the car was struck by the train without any warning of its approach until within a few feet; that the car stalled about one and one-half minutes before the collision; and that he did not know whether his father looked for the train or not. The testimony of Charles and Jess is substantially the same as that of Clay. A number of witnesses for plaintiff say they heard no train signals closer than a mile or so to the crossing until they heard distress signals just before the collision. Evidence for plaintiffs fix the distance at which the crossing could be seen from the track at from about nine hundred to sixteen hundred feet.

The version of the trainmen is that the fireman and engineer could see the crossing at distances of about 900 and 500 feet respectively; that the whistle was blown as a crossing warning in the bend about one-half mile from the crossing; that at a distance of some eight or nine hundred feet the fireman noticed the car approaching the crossing and commenced ringing the bell: that when he saw the car was not stopping, he blew the whistle; that the engineer was watching the track and did not see the car until it was right at the crossing; that he immediately threw on the emergency brake and applied the sand, which was all he could do as the train was '' drifting'' at the time; and that the car was entirely upon the crossing when it was struck. C. J. Jeter, a witness for the plaintiffs, supports the engineer as to the whistle being blown in the bend above the crossing. The testimony of the trainmen as to the position of the roadster at the moment of collision is confirmed by the following undisputed and unquestioned evidence, (a) The ground was scraped for a distance on the outer side of each rail, (b) There is an indentation about six inches deep in the right door (sheet steel) of the car, which was received in the collision and which corresponds exactly to the dimensions of the knuckle of a steel coupling on the pilot beam of the engine. (The beam extends across the front of the engine about thirty inches above the rail, and the coupling is in the exact center of the beam.) (c) Two iron steps, one on each side of the pilot beam, were "bent in."

Had the car been at the place located by plaintiffs when it was struck, the ground would have been scraped on both sides of the second rail only; the indentation of the coupling knuckle would have appeared somewhere on the rear of the car, if at all, and only one step would have been bent in. The proven physical facts demonstrate that plaintiffs' witnesses are confused as to the position of the car at the moment of collision; and that instead of merely the rear of the car being on the track, the entire car was on it, the center of the car being about the center of the track. The plaintiffs have no explanation whatever of why the car was squarely on the track when it was struck. Testimony for defendant, which is also undisputed, shows that when sufficient power had. been exerted to propel a car like the roadster up on the crossing, the acquired momentum of the car alone would roll it across and free of the track. So the theory that the roadster had been stalled at the actual place of collision is hardly tenable. It is incumbent on the plaintiffs to show just how and why the entire car happened to be on the crossing when struck. Until they show that, we have no way of determining just what prior duty the trainmen owed them, or whether that duty was breached. Verdicts based on oral evidence, controverted by established physical facts, as in these cases, cannot stand. Owen v. Appalachian Power Co., 78 W. Va. 596, 609, 610; Waller v. By. Co., 108 W. Va. 576; 46 C. J., p. 183, sec. 138.

This holding would ordinarily make further discussion of these cases unnecessary. As retrials are possible, however, it may not be inapt to make some abstract observations on the theory of recovery presented by plaintiffs' instructions. This theory ignored entirely the concurring negligence, if any, of the plaintiffs. Yet concurring negligence of a plaintiff may prevent the application of the doctrine of the last clear chance. Waller v. By. Co., supra, 585; Thompson on Negligence, sec. 240; 45 C. J. p. 993, sec. 545; Brown v. Tr. Co., 76 O. S. 234; Rider v. Ry. Co., 171 N. Y. 139, 154-5; Norton v. Rr., 24 Pa. 465; McDonald v. Ry. Co., 99 Tex. 207, 213; Ry. Co. v. Wendt, (Ohio) 165 N. E. 737, 739; Thompson v. Morgan, (La.) 119 So. 69. A number of cases are cited by plaintiffs supporting their theory, and an equal array is presented by defendant opposing it. The history of how this conflict originated may be of interest, In Butterfield v. Forrester, 11 East. 60, an English case decided in 1809, it appeared that the defendant, while repairing his house, had partially obstructed the street and that the plaintiff was injured thereby while riding along the street without any caution and "as fast as his horse could go." As the decision in this case, written by Lord Ellenborough, is a model in judicial brevity as well as a leading case on the law of contributory negligence, it is copied in full. "A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong...