Krodel v. Baltimore & O. R. Co

CourtSupreme Court of West Virginia
Citation128 S.E. 824
Decision Date09 June 1925
Docket Number(No. 4969.)

(Syllabus by the Court.)

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 and Somerville & Somerville, all of Point Pleasant, and C. M. Hanna, of Parkersburg, for plaintiff in error.

B. H. Blagg, of Point Pleasant, Lewis H. Miller, of Ripley, Marshall & Forrer, of Parkersburg, and S. P. Bell, of Spencer, for defendant in error.

Steptoe & Johnson, of Clarksburg, amici curiæ.

LIVELY, P. 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 $5,000 in her favor and she brings error.

At the time of the injury plaintiff was 17 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 10 to 20 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 16-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 1, 900 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 23d 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 thatplaintiff's contributory negligence was tbe 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 cannot 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, was 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 and 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. Ry. Co., 95 W. Va. 490, 121 S. E. 498.

The jury were correctly instructed that the law of this state (Barnes' Code 1923, c. 54, § 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 case that the train that struck the automobile in which the plaintiff was riding at the time she was injured was running at a greater rate of speed than that prescribed by the city ordinance of Point Pleasant offered in evidence in this case, the jury may consider this fact along with the other facts and circumstances of the case in determining whether or not the defendants were negligent in operating said train which struck the said automobile in which the said plaintiff was riding."

When we say that this instruction adequately and accurately covers the principles applicable we have sufficiently announced our views on the proposition. They are supported specifically by the case of Southern Railway Co. v. Stockdon, 106 Va. 693, 56 S. E. 713, and seem to us to be sound in every respect. We are aware that some courts hold to the view that the violation of a speed ordinance by a train is negligence per se—a proposition not insisted upon by plaintiff in this case—but we think the correct principle is the one stated in the instruc-tion above, and approved by the Supreme Court of the United States in the case of Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 35 L. Ed. 485, as follows:

"The running of a railroad train within the limits of a city at a greater speed than is permitted by the city ordinances, is a circumstance from which negligence may be inferred in case an injury is inflicted upon a person by the train."

For the proposition that, as a general rule, a traveler may presume that a train will not exceed the speed ordinances of a city in passing over crossings within the city limits, and he has a right to anticipate compliance with such ordinances by those in charge of an approaching train, see City of Elkins v. Western Maryland Railway Co., 76 W. Va. 733, 86 S. E. 762, 1 A. L. R. 198, as well as a monographic note in. 24 L. R. A. (N. S.) at page 493.

As we have given our approval to the instruction quoted above, we think the foregoing argument in support of it is not improper. While the evidence preponderates in favor of defendant that the whistle was sounded at least by one blast 700 or 800 feet from the crossing, and that the bell was automatically ringing all the while, the jury may have found that the rate of speed at that particular place in violation of the. ordinance was negligence.

As we have said, the jury found from all the circumstances that defendants were negligent. We therefore pass to the matter which is of chief consequence in this record; that is, the alleged contributory negligence of the plaintiff.

We have already indicated something of the geographical setting of this accident. Plaintiff had driven northward from the center of the city practically the full distance of Poplar street to the bend in the road. The railroad lay to her left, and was distant several hundred feet along this course, and, while it is not shown positively that her view of the tracks was obscured along the way, it is shown that the space between the highway and the railway was built up, not only with residences, but in several places with industrial buildings of considerable size. It appears that she did not drive near the station at the beginning of the trip, and there is nothing to indicate in the slightest degree that she had any actual notice that a train was on the way. She was familiar with the conditions of travel in the locality, and, while she makes no statement relative...

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