Kirk v. Williamson, (No. 5230)

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER, J.
• Citation: 100 W.Va. 109
• Parties: Wilson Kirk v. Williamson and Pond Creek RailroadCompany.
• Docket Number: (No. 5230)
• Decision Date: 13 October 1925

100 W.Va. 109

Wilson Kirk
v.
Williamson and Pond Creek Railroad Company.

(No. 5230)

Supreme Court of Appeals of West Virginia.

Submitted September 30, 1925.
Decided October 13, 1925.

[100 W.Va. 109]

1. Railroads Under Kentucky Law Railway Company, Without Special Authority, Cannot, by Lease, Absolve Itself From Liability to Third Persons For Negligent Aspiration.

Under the laws of Kentucky, a railway company, without special authority, cannot by leasing its property to an operating company, absolve itself or its property and franchise from liability to third persons observing due care for their own safety, for the negligent operation of engines and cars over its road through populous communities or at public or private crossings, where such persons are likely to be using the same. (p. 111.)

(Railroads, 33 Cyc. p. 703.)

2. Same Under Kentucky Rule, Contribzitory Negligence in Entering on Track Without Looking is Generally Question for Jury.

In Kentucky the rule requiring one about to go upon the track of a railway company to stop, look and listen at public crossings has not been adopted; and whether one who has entered upon a railway track at a public or private crossing in a populous community and been injured by the negligence of the railway company has been guilty of contributory negligence, is generally a question of fact for the jury, and not one of law for the court, (p. 115.) (Railroads, 33 Cyc. p. 1117.)

3. Same Under Kentucky Rule, Negligence of Person Relying on Crossing Signal is Question of Fact for Jury.

In Kentucky an employee of a coal company about to make use of a railway company's track in a populous community

[100 W.Va. 110]

and at a private crossing maintained by the railway company for the use of the coal company and its employees, has the right to rely on the railway company's blowing the whistle at the proper whistling post for a public crossing; and when the railroad company omits to perform its duties respecting such crossing, and the employee using' the track at such private crossing is injured in consequence thereof, the question whether he has failed to observe due care for his own safety and been guilty of contributory negligence, is one of fact for the jury, and not of law for the court, (p. 115.) (Railroads, 33 Cyc. p. 703.)

(Note: Parenthetical references by Editors, C J. Cyc. Not part of syllabi.)

Error to Circuit Court, Mingo County.

Action by Wilson Kirk against the Williamson & Pond Creek Railroad Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Holt, Duncan & Holt, for plaintiff in error. Bias & Chafin, for defendant in error.

Miller, Judge:

In an action against defendant for personal injuries sustained, plaintiff recovered a verdict and judgment for $5,000.00.

The cause of the action is that, being the owner, proprietor and operator of a railroad extending from the city of Williamson in this state, to the village of Hardy, in Pike County, Kentucky, the defendant company, at and near the village of Peg, on said railroad in said Pike County, so carelessly, negligently and improperly behaved and conducted itself in and about the management, control and direction of its locomotives, engines and cars, that the same, by and through the default, carelessness, negligence and improper conduct of its servants and employees, were driven with great force and violence against plaintiff, whereby he then and there sustained severe, serious and permanent injuries, and by reason whereof he also suffered continuously great pain, and for which he laid his damages at $20,000.00.

[100 W.Va. 111]

Issue was joined on defendant's only plea of not guilty, with the result already indicated; and the defendant sued out the present writ of error.

Numerous propositions, more or less involved in one another, are advanced by defendant's counsel to reverse the judgment; the first of which is that the circuit court, as requested by defendant's instruction number one, should have peremptorily instructed the jury to return a verdict for defendant. In support of this proposition reliance is had upon the fact that, while the defendant company is the owner of the railroad and its franchise, the property at the time of the alleged injury was being operated by its lessee, the Norfolk & Western Railway Company, the owner of the locomotives, engines and cars operated over said railway, and that the defendant company had no part therein. It is practically conceded that but for the provisions of section 203 of the constitution of the State of Kentucky, and the decisions of its courts in reference thereto, the defense would be complete. The section referred to is as follows: "No corporation shall lease or alienate any franchise so as to relieve the franchise or property held thereunder from the liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use or enjoyment of such franchise, or any of its privileges."

It seems to be settled law in Kentucky that a railway company can not, by a lease of its corporate property and franchise, relieve itself of its duties and obligations to the public, without express authority exempting it therefrom. Mc- Cabe's Adm'x v. Maijsville & B. 8. B. Co. (Ky.) 66 S. W. 1054; Lee v. Railroad Co. (Cal.) 58 Am. St. Rep. 152, note; Illinois Central R. R. Co. v. Sheegog's Admr., 126 Ky. 252, 103 S, W. 323.

Whether the provision of the Kentucky constitution involved renders a lessor company liable for injuries inflicted by the lessee on its own servants in the operation of the railway property in the manner shown in the case at bar, we need not decide. The decisions in Kentucky would seem to bold the lessor not liable for such injuries; the reason in part at least being that the relationship of employee to em-

[100 W.Va. 112]

ployer in such cases is contractual, and the rights of the parties controlled by the contract. Sivice's Admr'x v. Maysville & B. 8. R. Co., 116 Ky. 253, 75 S. W. 278.

The plaintiff in this case was not an employee of...