Krodel v. Baltimore

• Decision Date: 09 June 1925
• Docket Number: (No. 4969)
• Citation: 99 W.Va. 374
• Court: West Virginia Supreme Court
• Parties: Perne Burnside Krodel v. Baltimore & Ohio RailroadCompany

99 W.Va. 374

Perne Burnside Krodel

v.Baltimore & Ohio Railroad

Company

(No. 4969)

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1925.

Decided June 9, 1925.

1. Railroads Traveler May Anticipate Train Will Give Statutory Warning and Will Not Exceed Speed Limit; Failure to Give Statutory Warning or to Obey Speed Ordinance Considered in Determining Negligence in Operating Train. A traveler approaching a railroad at a highway crossing has the right to anticipate that trains nearing the crossing will give the warning signals prescribed by statute, and that while in the limits of a city or town they will not exceed the limit of speed prescribed by the municipal ordinances thereof; and if it appears that those in charge of a train which collided with an automobile at a crossing, failed to obey the provisions of the statute or ordinance, such omission may be considered along with all other facts in the case in determining whether the railroad company was negligent in the operation of its train, (p. 379.)

2. Same Traveler's Negligence Generally Question for Jury. A traveler approaching railroad tracks at a crossing is not required under all circumstances to stop, as well as look and listen before attempting to cross the tracks. Whether one has been negligent in failing to stop is generally a question for the jury, though in some cases the duty to stop becomes so apparent that failure to do so is legal negligence, (p. 383.)

3. Same Automobile Driver Must Exercise High Degree of Ordinary Care; Trainmen Must Give Statutory Warning; Sjoeed of Train and Care Must Be Commensurate With Danger.

The driver of an automobile should approach a railroad crossing with a high degree of ordinary care and caution. Safety for his own life, as well as the lives of the operators and passengers on the train demand it. On the ether hand, it is the duty of the trainmen to give notice of the approach of the train required by statute, and at city crossings where the surroundings are such as to make it peculiarly dangerous, the speed of the train and care in the approach must be commensurate with the danger, (p. 384.)

4. Same Automobile Driver Held Guilty of Contributory Negligence.

At a street crossing there is a clear view of the railway tracks in either direction for a long distance after the traveler on the street has come within 40 feet of the crossing. At a point on the street 43 feet from the crossing the view of the track in one direction is obstructed so that the track can be seen for a distance of about 170 feet only. The driver of a closed automobile approached this crossing at a speed of about 10 miles per hour, and looked for an approaching train at the point where she could see about 170 feet of track; not seeing a train within that distance, she drove onto the crossing without again looking in that direction and without lessening her speed, where she collided with the engine of a rapidly moving passenger train, and was injured. Four persons immediately across the track who had stopped to let the train go by tried to warn her of the danger by waving her back, but she did not see them. There was positive evidence that the automatic engine bell was ringing and continued to ring until after the collision.

Held: The trial court did not abuse its discretion in setting aside a verdict in her favor, his action being warranted on the ground of contributory negligence, (p. 386.)

5. Negligence Question of Contributory Negligence for Court. Where the facts which control are not disputed and are such that reasonable minds csn draw but one conclusion from them, the question of contributory negligence barring recovery is one of law for the court, (p. 386.)

Error to Circuit Court, Mason County.

Action by Feme Burnside Krodel against the Baltimore & Ohio Railroad Company. The trial court set aside a verdict in favor of plaintiff, and she brings error.

Affirmed.

Hogg & Hogg, Somerville & Somerville, and C. M. Hanna, for plaintiff in error.

B. H. Blagg, Lewis H. Miller, Marshall & Forrer, and 8. P. Bell, for defendant in error.

Steptoe & Johnson, counsel amici curiae.

Lively, President:

Plaintiff sues the Baltimore & Ohio Railroad Company and Joseph Lane, one of its engineers, for personal injuries sustained when the automobile in which she was driving collided with defendant company's locomotive at a highway crossing in the city of Point Pleasant. The circuit court set aside the verdict for $5000. in her favor and she brings error.

At the time of the injury plaintiff was seventeen years old, unmarried, and, in company with a girl companion, was driving a Ford sedan on Poplar Street, at a speed variously estimated at from ten to twenty miles per hour; the best evidence indicates that the lower estimate is more nearly correct. Her general course was northerly, as the street on which she was riding is the sixteen foot concrete roadway extending north and up the Ohio river from Point Pleasant. As shown by a map introduced in evidence by defendants, Poplar Street begins at Fourteenth Street and runs practically parallel to the railway a distance of something like 1900 feet, at which point by a sweeping curve to the left or west it turns towards the track and crosses it at almost a right angle. The day was fair and cool, the 23rd of December, 1920, and plaintiff was in full possession of her faculties and had the benefit of a year's experience in driving automobiles. Defendants say they were free from fault and that plaintiff's contributory negligence was the proximate cause of her very serious injuries. Judging by the verdict, the jury held a different view, but the trial court set that verdict aside, and while the court assigns no reasons for its judgment, the argument of counsel, and the facts of the case show clearly that the decision was on the ground that plaintiff's contributory negligence was established as a matter of law. That proposition will therefore be the chief matter for discussion.

However, the negligence of defendants should be considered. The declaration alleges: (1) defendant's alleged careless and negligent omission to sound the bell or blow the whistle as required by law when approaching the crossing, and (2) the running of the locomotive and train at a speed in excess of that prescribed by an ordinance of the City of Point Pleasant, The ordinance referred to fixes the speed at which defendants should have run at 10 miles per hour, and there is evidence that the train in question was going anywhere from 25 to 35 miles per hour when it reached a point 700 or 800 feet south of the crossing, and was going at from 12 to 20 miles per hour when the crossing was reached. The violation of the ordinance is apparent. As to the whistle and bell the evidence is not so clear. There seems to be no doubt that the whistle was blown, but as to just where, or how many blasts were given, we can not positively state. Quite an array of witnesses, including not only members of the train crew, but three or four persons who were in the vicinity, testify that the whistle was blown as the train passed the Malleable Iron Works and the watering tank which stand about 700 feet south of the crossing, but these same witnesses have different recollections as to the number and length of the blasts. All of the train crew are certain that the regular crossing signal, two long and two short blasts were blown; others testify that they heard one long blast. One person so testifying appeared as a witness for plaintiff, and one Windsor, who also testified for her and who was following her in another automobile, states that he heard two or three blasts in quick succession when the train was perhaps 200 feet from the crossing, and that he immediately recognized that plaintiff was in danger. Nineteen witnesses, some introduced by plaintiff, heard the whistle sounded; while five or six witnesses did not hear it. Plaintiff and her companion in the closed car did not hear it. That the whistle was sounded 700 feet or more from the crossing, there can be little doubt. The number of blasts given is in controversy, and the question is, whether the statutory notice was given; that is, whether the blowing of the whistle or ringing of the bell was kept up long enough to give warning of the train's approach to those persons at the crossing. The engineman and fireman swear that the automatic electric bell on the engine was set ringing upon leaving the station at Point Pleasant and was kept ringing through the town until after the accident occurred when it was stopped by the engineer. Gladys Hicks who saw the accident heard the bell ringing as the engine approached the crossing. Others heard the bell. Other witnesses did not hear the bell. No one says it was not ringing. It is difficult to see much conflict in the evidence as to the ringing of the bell. The evidence that it was ringing was positive; while the evidence that it was not ringing was negative. Cavendish v. By. Co., 95 W. Va. 490.

The jury were correctly instructed that the law of this State (Barnes' Code, 1923, ch. 54, sec. 61) prescribes that a locomotive shall ring its bell or sound its whistle at a distance of not less than 60 rods from a public street crossing, and that such warning shall be continued for a time sufficient to give due notice of the approach of such train before such crossing is reached, and that if any person or corporation operating a train neglects to perform this duty, such omission constitutes negligence, and if a person is injured by reason of such negligence as the proximate cause thereof, he is entitled to recover damages commensurate with the injury. The jury were also charged relative to the operation of the train at a speed in excess of that prescribed by the ordinance, as follows:

No. 10. "The jury are hereby instructed that the mere running of a train in violation of an ordinance of a city or town is not per se negligence, but if the jury believe from the evidence in this...