Kidd v. Norfolk & Western Ry. Co.

• Decision Date: 05 December 1972
• Docket Number: No. 13098,13098
• Citation: 192 S.E.2d 890,156 W.Va. 296
• Court: West Virginia Supreme Court
• Parties: Lacie KIDD, Administratrix, etc. v. NORFOLK & WESTERN RAILWAY COMPANY, a Corporation, et al.

Page 890

192 S.E.2d 890

156 W.Va. 296

Lacie KIDD, Administratrix, etc. v. NORFOLK & WESTERN RAILWAY COMPANY, a Corporation, et al.

No. 13098.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1972.

Decided Dec. 5, 1972.

Syllabus by the Court

1. 'When the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them, the questions of negligence and contributory negligence are for jury determination.' Point 1, Syllabus, Sydenstricker v. Vannoy, 151 W.Va. 177 (150 S.E.2d 905).

2. 'It is the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.' Point 1, Syllabus, Evans v. Farmer, 148 W.Va. 142 (133 S.E.2d 710).

3. 'Contributory negligence on the part of the plaintiff is an affirmative defense. There is a presumption of ordinary care in favor of the plaintiff, and where the defendant relies upon contributory negligence, the burden of proof rests upon the defendant to show such negligence unless it is disclosed by the plaintiff's evidence or may be fairly inferred by all of the evidence and circumstances surrounding the case.' Point 6, Syllabus, Leftwich v. Wesco, 146 W.Va. 196 (119 S.E.2d 401).

4. 'A jury verdict based on conflicting testimony involving the credibility of witnesses and approved by the trial court, will not be set aside by this Court as contrary to the evidence unless it is clearly wrong or is without sufficient evidence to support it.' Point 5, Syllabus, Shaeffer v. Burton, 151 W.Va. 761 (155 S.E.2d 884).

5. 'Infliction of an injury at a railroad crossing is not in itself evidence of contributory negligence on the part of the person injured.' Point 2, Syllabus, Casdorph v. Hines, 89 W.Va. 448 (109 S.E. 774).

Slaven, Staker & Smith, Zane Grey, Staker, Ronald J. Rumora, John M. Richardson, Williamson, for appellants.

Hogg & Persinger, Howard M. Persinger, Jr., Ersel L. Slater, Williamson, for appellee.

CAPLAN, Judge:

In an action instituted in the Circuit Court of Mingo County the plaintiff, Lacie Kidd, Administratrix of the personal estate of Ivan Branham, deceased, sought to recover from the defendants, Norfolk and Western Railway Company, a corporation, and Charles C. Cline, a railroad engineer employed by said railway company, damages for the wrongful death of her brother, Ivan Branham. Therein, the plaintiff alleged that her brother's death was caused by the negligence of the defendants. Upon trial by a jury a verdict in the sum of $7,500.00 was returned in favor of the plaintiff. A motion to set aside the verdict was overruled, judgment was entered on the verdict and the defendants prosecute this appeal.

The unfortunate incident which gave rise to this controversy occurred at Matewan, West Virginia on June 23, 1967, during daylight hours and in clear weather. As reflected by the evidence the plaintiff's decedent was struck and killed by a Norfolk and Western train consisting of an engine and two hundred twenty-five coal cars while it was travelling west on one of the company's mainline tracks.

Shortly before this accident occurred Ivan Branham was visiting in the home of Leroy and Ruby Tiller which was located in Matewan on a hillside north of the railroad tracks. Branham, according to the testimony, had apparently been drinking an intoxicating beverage, as evidence by Mrs. Tiller's request to her husband to 'get him out'. When Mr. Tiller asked Branham to leave the latter admitted that he had been drinking and expressed fear that the police would pick him up. Thereupon, Mr. Tiller told him that he would take him home. Branham said that he was going over to the liquor store and would meet him at the filling station. Branham then left the house and proceeded down the hill to the railroad tracks.

There are two mainline tracks which run parallel to each other upon which Norfolk and Western trains travel east or west. As they pass through Matewan they form a wide sweeping curve, one set of tracks being situate to the north of the other. Mr. Branham, intending to cross these tracks, noted that a train was passing in a westerly direction on the one to the south. He therefore stopped north of the tracks nearest the Tiller home and waited for the train to pass. It is not clear from the evidence how long he was standing there but while there he was struck and instantly killed by a train travelling in a westerly direction on the northernmost tracks.

Pertinent to the decision of this case is the place, with regard to the proximity of the tracks, at which Mr. Branham was standing when struck. The evidence on this matter was conflicting and, upon presentation to the jury, was resolved in favor of the plaintiff. On this appeal the defendants seek reversal of the judgment entered on the jury's verdict, their sole ground being that the deceased was guilty of contributory negligence as a matter of law, thereby precluding recovery by the plaintiff. The defendants assert that the undisputed testimony showed contributory negligence as a matter of law and that the trial court should have directed a verdict in their favor. Their ultimate position is that the fact that the deceased was struck and killed by a train is sufficient to show that he was contributorily negligent as a matter of law.

It is the position of the plaintiff that the trial court properly submitted the questions of negligence and contributory negligence to the jury and that the evidence, upon which these questions were submitted, when viewed in the light most favorable to the plaintiff, clearly supports the jury verdict.

In order to resolve the question presented on this appeal, the being whether or not the court erred in failing to direct a verdict for the defendants on the ground of the deceased's contributory negligence, it is essential to consider all of the facts and certain legal principles enunciated by this Court and courts of other jurisdictions.

It has long been held by this Court that the questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them. Sydenstricker v. Vannoy, 151 W.Va. 177, 150 S.E.2d 905; Dunning v. Barlow & Wisler, Inc., 148 W.Va. 206, 133 S.E.2d 784; Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710; Campbell v. Campbell, 146 W.Va. 1002, 124 S.E.2d 345; Lewis v. Mosorjak and McDonald, 143 W.Va. 648, 104 S.E.2d 294. It has been held by many decisions of this Court that it is the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony regarding such facts is conflicting and that the finding of the jury will not ordinarily be disturbed on appeal to this Court. Sydenstricker v. Vannoy, 151 W.Va. 177, 150 S.E.2d 905; Graham v. Crist, 146 W.Va. 156, 118 S.E.2d 640; Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598; Gilkerson v. Baltimore & Ohio Railroad Co., 129 W.Va. 649, 41 S.E.2d 188; Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410.

The material facts of this case, some of which are undisputed and some of which are conflicting, are of such nature that reasonable men may draw different conclusions from them.

The defendants assert that the undisputed evidence discloses that the deceased, while in a state of intoxication and while standing twelve to eighteen inches from the northernmost track, was struck and killed by its train. That the deceased was struck and killed by the defendants' train is truly undisputed. That the latter fact necessarily constituted contributory negligence as a mater of law is without merit.

Let us first consider the assertion of intoxication, keeping in mind that Branham is not being charged with drunkenness. The apparent contention of the defendants is that Branham was in such a state of intoxication that he was unable to look out for his own safety, thereby proving that he was contributorily negligent. Mrs. Tiller testified that she smelled alcohol on Mr. Branham's breath so she knew he was drinking. As a defense witness she testified that she didn't know if he was drunk; that he was not unsteady on his feet and 'didn't seem to be too drunk'; that she could understand him; and that he didn't stagger 'too much'. Mr. Tiller testified that Branham had been drinking but he 'wasn't drunk'. Another witness testified that she saw Branham just before he was struck and that he did not appear to be intoxicated.

The evidence as to whether Branham was so intoxicated that he voluntarily placed himself in a position of danger was in conflict. While he doubtless had been drinking, not one witness testified that he was drunk or even that he was unsteady on his feet. In this state of the evidence a jury question was presented as to whether the deceased was intoxicated at the time of his death. It is clear from the jury's verdict that it did not believe that Branham was in such a state of intoxication that he was unable to care for his own safety.

The other premise of the defendants is that Branham was standing too close to the railroad tracks, an undisputed fact which proves contributory negligence. The fact that he was struck and killed by a train is insufficient to prove contributory negligence. See Arrowood v. Norfolk & Western Railway Company, 127 W.Va. 310, 32 S.E.2d 634; Casdorph v. Hines, 89 W.Va. 448, 109 S.E. 774; Canterbury v. Director General of Railroads, 87 W.Va. 233, 104 S.E. 597; and Melton v. Chesapeake & Ohio Railroad Co., 71 W.Va. 701, 78 S.E. 369. While these cases are not precisely in point factually, the principles of law enunciated therein are most persuasive in demonstrating that a mere showing that one was struck by a train on or near a railroad track is in itself insufficient to...