Killmeyer v. Wheeling Traction Co.
| Decision Date | 11 March 1913 |
| Citation | 77 S.E. 908,72 W.Va. 148 |
| Parties | KILLMEYER v. WHEELING TRACTION CO. |
| Court | West Virginia Supreme Court |
Submitted January 31, 1911.
Syllabus by the Court.
Where an obstruction prevents further passage of a car, and another is, by the carrier, substituted therefor beyond the obstruction, the duty imposed by law upon a carrier for the safety of passengers is not thereby suspended, but continues unaffected while, without negligence on his part, and in exercise of ordinary care for his safety, a passenger is engaged in an immediate effort to reach the substituted car.
If a passenger, thus transferring to the second car, follows the course suggested or designated by employés in charge of the first, and, without fault on his part, is injured thereon such injury is not chargeable to his negligence, unless the danger of passage thereover is obviously apparent.
If while thus engaged, a passenger substantially follows the course so designated, and, without fault on his part, is injured, the carrier is liable in damages therefor.
Where the directions of an employé are within the scope of his authority, and obedience thereto will not expose a passenger to known or apparent danger which a prudent man would not incur, the passenger is justified in acting upon them, and is not guilty of contributory negligence, although he may be injured in so doing.
Directions by an employé of a carrier in charge of the car, under the circumstances stated, are within the apparent scope of his authority.
One in transit from one car to another, substituted therefor because of an obstruction, remains a passenger, and entitled to the protection that the highest degree of care on the part of the carrier can afford under the circumstances.
Under the circumstances of this case, defendant was negligent in directing plaintiff, without light or guide, into a place the dangers of which were unknown to him and not obviously apparent to reasonable men under similar conditions.
Error to Circuit Court, Ohio County.
Action by Charles F. Killmeyer against the Wheeling Traction Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Erskine & Allison, of Wheeling, for plaintiff in error.
Handlan & Reymann, of Wheeling, for defendant in error.
By writ of error defendant seeks review and reversal of a judgment against it in this case. The action is for recovery of damages for an injury to plaintiff.
While there is conflict in the evidence in some respects later noticed, it sufficiently appears that plaintiff, about midnight on the day of the injury was a passenger on defendant's traction lines, and as such entitled to transportation from Moundsville to Wheeling, he having paid the necessary fare for the trip. On the arrival of the car at Bogg's Run, an intermediate point, those in charge thereof, finding the tracks submerged by reason of a freshet directed plaintiff and other passengers to alight and to proceed on foot by a way designated by the employés to another of defendant's cars then, or soon to arrive, at a point on its lines beyond the obstruction, which would carry them to their destination, without further charge. Finding the way so designated also obstructed, they returned to the first car, when, as plaintiff seeks to prove and defendant to deny, the employés directed them to follow another course likewise designated in order to reach the second car, and that in following the same the plaintiff fell from a high wall and received the injury for which he seeks recovery. There is no denial that the employés directed the course first designated and abandoned. The defendant does deny, and to some extent supports the denial by the testimony of its employés, that any directions were given by the latter as to any course, and especially as to the one actually followed. It introduced evidence tending to prove that the course followed was so inherently and obviously dangerous that prudent men having due regard for personal safety would not follow it, even if directed so to do; that one other course was open and free from obstruction, in following which the injury would not have occurred. It also denies that plaintiff was a passenger, thus requiring its care for his safety while passing on foot between its cars. Substantially though in brief, this statement fairly presents the material issues to which the proof in the record is directed, and upon a consideration of which the jury based its finding.
In view of the authorities examined, including those cited by counsel and others, the conclusion is that plaintiff was and remained a passenger, entitled to a high degree of care for his safety, from the time of his entry on defendant's car at Moundsville to his discharge therefrom in the city of Wheeling. Why not? He paid and it received the requisite fare. It accepted him as a passenger, and thereby engaged to carry him to his destination. In the meantime it also assumed that high degree of care for his personal safety imposed by law upon a common carrier. The defendant does not deny the relation of passenger and carrier during the time plaintiff was within its cars, or his right to transportation thereon before and after the obstruction. The relation is denied only during the time intervening and necessary for passage from one car to the other. This proposition does not find support in any authority cited or found upon examining this case. If a passenger on each car under the same and not a new contract, he was a passenger in the interval. The relation of carrier and passenger, with its attendant duties and obligations, is not intermittent. It continues until completed, unless broken by some act of the passenger indicative of abandonment, or some conduct on his part justifying the carrier in terminating the relation. "Where the relation of carrier and passenger is once established, it continues until terminated by the voluntary act of the passenger, or the act of the carrier, under circumstances justifying its termination, and extends to the arrival of the passenger at his destination; and a temporary departure from the train for some good or reasonable cause, without the intent to abandon the transportation, will not end the relation." 6 Cyc. 541.
Where a passenger had a ticket entitling him to carriage beyond a station, at which in changing trains it was necessary to cross intervening tracks of the carrier, and in doing so he was injured, it was held that while "in transit from one train to the other he continued to be a passenger and entitled to the protection that the highest degree of care on the part of the defendant could afford under the circumstances." Railroad Co. v. Hauer, 60 Md 449. The relation of carrier and passenger does not cease, although actual transit is interrupted by a wreck, and plaintiff in order to obtain a nearer view thereof voluntarily leaves the temporary station to which he has been transferred to await the arrival of another train. Conroy v. Railroad Co., 96 Wis. 244, 70 N.W. 486, 38 L.R.A. 419. True, in the case cited recovery was denied, not because the relation had ceased, but because the defendant did nothing expressly or by implication to invite, entice, or allure plaintiff to the place of injury. On the contrary, he voluntarily and unnecessarily exposed himself to a place where the danger was apparent and impending. A stockman on a freight train, with the consent of the railroad company, in charge of his stock, does not cease to be a passenger while making a...
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