Kelley v. Ohio River R. Co.
| Decision Date | 31 October 1905 |
| Citation | 52 S.E. 520,58 W.Va. 216 |
| Parties | KELLEY v. OHIO RIVER R. CO. |
| Court | West Virginia Supreme Court |
Submitted June 13, 1905.
On Rehearing, January 9, 1906.
Syllabus by the Court.
Upon demurrer to evidence by defendant, if the plaintiff's evidence is sufficient to sustain his case, oral evidence of the demurrant conflicting with that of the demurree is ignored, and the demurrer overruled, unless the oral evidence of the demurrant be so clearly preponderant over that of the demurree that a verdict for the demurree would be set aside.
In an action in behalf of a father for killing his son by wrongful act or negligence, the jury is not confined to compensative damages for mere pecuniary injury, but may consider the sorrow, the mental distress, and bereavement of the father.
When the trainmen see a person walking on a railroad track, they must give him an alarm signal at such distance before reaching him as will enable him to hear it and get off the track. Until such alarm is given, they cannot act on the assumption that he will get off the track.
Error to Circuit Court, Wayne County.
Action by John Kelley against the Ohio River Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Vinson & Thompson, for plaintiff in error.
Marcum Marcum & Shepherd and W. W. Marcum, for defendant in error.
BRANNON P.
This is an action by John Kelley, as administrator of James Kelley against the Ohio River Railroad Company to recover damages for killing James Kelley by running a passenger train against him. The defendant entered a demurrer to the evidence, and upon it the court rendered judgment against the defendant for $5,000, the damages assessed by a jury. James Kelley and one O'Conner were walking along the railroad track, using it for a footway, and were struck by a passenger train running at the speed of 35 or 40 miles an hour, and both were killed. The case does not involve the question of the liability of a railroad company for failure to keep a lookout for persons on its tracks; for it is without question that the trainmen could see Kelley and O'Conner on the July day on a straight track for more than half a mile, and did see them for a long distance before they were struck. The single question is a question of fact; that is, whether the trainmen, after discovering Kelley and O'Conner on the track, were guilty of negligence in failing to sound an alarm at the proper distance before striking them.
It is undeniable law that one walking upon a railroad track, using it as a footway, is a trespasser, and in that very act is guilty of great negligence. Spicer v. Railroad Co., 34 W.Va. 514, 12 S.E. 553, 11 L. R. A. 385. But whilst such is the law, it is also settled law that after the trainmen have discovered one so walking upon the track they owe to him a duty under the law. They cannot injure him by willful or gross or wanton negligence. Spicer v. Railroad Co., 34 W.Va. 514, 12 S.E. 553, 11 L. R. A. 385. Whatever be the duty of a railroad company's agent to keep a lookout to discover persons on the track, certain it is that when the trainmen have discovered a human being on the track, and in danger, they must give him warning of the train's approach, such a warning, by whistle or bell, at such a distance, before reaching the trespasser, that he will be able to hear, take a thought for his safety, and get off the track. Common humanity demands this. True he is a trespasser and in the wrong; but, though every man who uses the railroad track as a footway is committing a trespass has placed himself within the precinct of danger where he has no right to be, and is guilty of gross negligence, yet people do walk upon railroad tracks, and the law, from sheer necessity, has established the rule, applicable not only to railroads, but generally applicable, that it is the duty of one from whom the injury comes that he shall, when he sees a man in danger use reasonable care, take reasonable steps, reasonable under the circumstances of the particular case, to save the man in danger. He cannot punish the trespasser for his wrong. It is a condition, not a theory. He cannot thus himself be guilty of a great wrong. He must help his perishing brother by doing what he reasonably can to warn and save him. These men were absent-minded in conversation. Some become listless and abstracted in mind. They are entitled to warning. At any rate, so the law is. Under this principle it is the duty of a railroad company, it was the duty of the defendant in this case, to blow an alarm with its locomotive at a point far enough from Kelley to reach his ears, allowing him to realize his danger, and take steps to save himself from the rushing deadly locomotive. Raines v. Railroad, 39 W.Va. 50, 19 S.E. 565, 24 L. R. A. 226; Teel v. Railroad, 49 W.Va. 85, 38 S.E. 518; Ray v. C. & O. Ry. Co., 57 W.Va. 333, 50 S.E. 413; 3 Elliot on Railroad, § § 1253-1257. In that late great work, Thompson's Commentaries on Negligence (volume 1,§ 238), we find this:
These unfortunate men were on the railroad track, seen by the engineer and fireman, as they themselves say, for a very considerable distance before they were struck, in open daylight. They say that, when the train struck the straight track, they saw the men. They saw them before blowing a crossing signal, at least 1,000 feet before the men were struck. Furthermore, the engineer swore that, after blowing the whistle, he saw that the men were making no effort to get off the track. The facts fully establish beyond dispute that the trainmen saw these men, and saw, and had occasion to realize, plain reason to realize, that they were in imminent danger, and did realize it. Everybody must know that an engineer who sees two men walking in front of his engine, flying at the rate of 40 miles an hour, only a few feet away, sees that they are in imminent danger. True the engineer may assume that the tresspasser will get off the track; but, when he sees for several hundred feet that he makes no effort to get off the track, it must inevitably arouse a reasonable apprehension that the man does not realize his danger, and that the case calls for prompt alarm signals. If it be true, as the engineer says, that he blew a crossing signal 1,000 feet away from the men, the very fact and the fact that the men still kept walking the track were enough to tell the engineer that the men were listless, and to watch them closely, and to alarm them at the proper point. But the engineer and fireman let these men walk on, according to the plaintiff's evidence, without any sound of alarm until the moment before the engine struck them and hurled then into eternity. Three witnesses swear pointedly that they heard no whistle at the crossing even. Three witnesses swear that the locomotive gave two toots for alarm, but did not do so until just as the engine struck the men. One of the witnesses says it struck them just as the second toot was sounded. If this be so, if this is a fact, then the liability of the company is infallibly fixed under the law of the land and really here the case ends. Remember that we are upon a demurrer to the evidence, and under principles applicable to a demurrer to the evidence we cannot get away from accepting as a fact that no kind of alarm signal was given until just as the locomotive struck Kelley and O'Conner. There is conflicting evidence, or conflicting in tendency and effect, disputing the theory that no alarm was given until just as the engine struck the men. Two witnesses say that the train was nearly opposite the residence of Bowe, that the engine had passed the house, but that some of its cars were opposite it, when the alarm was sounded, and Bowe measured from the point where the train was when it gave the alarm to the point where it struck Kelley and O'Conner, and found it to be 345 feet. Now, can Bowe be certain as to the point at which the train was? The train was flying. Is this evidence as certain as that of the three men who saw the men struck and heard the whistle at the same time? One of these three witnesses, when cross-examined, was asked if he had an idea how far the engine was from the man when it blew the first whistle, and answered that he did not know. When asked if it was as much as 100 yards, he said he did not know. This somewhat weakens his evidence; but the fact remains that he said: "She whistled twice about the time she hit them." Besides, two other men swear the same thing. He was a boy 13 years of age, and we all know that under cross-examination children are not always consistent in all their statements. It is said that Bowe's measurement of the distance was with a tape line, whereas the three witnesses who said that the whistles were just as the men were struck merely...
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