McGuiRE, Adm'r., v. Railway Co.
| Decision Date | 26 March 1912 |
| Citation | 70 W.Va. 538 |
| Parties | McGuiRE, Adm'r., v. Railway Co. |
| Court | West Virginia Supreme Court |
1. Railroads Operation Persons on Tracfc Children.
In so far as it is consistent with their other duties in operating their train, it is the duty of both the fireman and engineer to keep a reasonable lookout for children of tender years, trespassing upon the railroad track, (p. 540).
2. Same.
If a child of tender vears is killed bv a railroad engine, and it appears that the child was on the track, or perilously near it, at a point where there was nothing to obstruct the view of the fireman, and far enough in front of the moving train for it to have been stopped, by exercising reasonable diligence, in time to prevent injury to the child, the failure of the fireman to observe the child until it is too late to stop before running upon it, is negligence, and such negligence is, in law, the proximate cause of the death, and the railroad company is liable, notwithstanding the engineer may not himself have been negligent, (p. 54G).
3. Trial Operation Persons on Tracks Instructions Applicabil-
ity to Evidence.
An instruction is properly refused which vvould submit to the jury the question of the mother's imputed negligence, as affecting her right, as distributee, to recover for the negligent killing by a railroad company of her child two and a half years old, when the only proof of such negligence is the fact that the child, unattended by an older person, went upon the company's track, in a populous town, and was killed by a moving train, (p. 544).
If the verdict rests upon conflicting testimony of witnesses, and there is sufficient evidence to support it, the court will not set it aside. The jury are the sole judges of the credibility of witnesses. They may believe one witness in preference to believing two, or more, who testify against him. (p. 541).
A party who uses his adversary's witness to prove a certain fact makes him his own witness for that purpose, but he is not bound by his testimony on cross-examination, in respect to other matters concerning which he was not examined in chief. As to such new matter the witness becomes the witness of the cross-examiner, (p. 513).
(Brannon, President, absent).
Error to Circuit Court, McDowell County.
Action by J. G. McGuire, administrator, against the Norfolk & Western Railway Company. Judgment for plaintiff', and defendant brings error.
Affirmed.
Wyndham Stokes and J. Graham Sale, for plaintiff in error.
54.0
Bar old A. Ritz and Cook, Litz & Howard, for defendant in error.
J. G. McGuire, administrator of Juanita Hunt, recovered a judgment for $2,000 against the Norfolk & Western Bailway Company for negligently causing the death of his intestate, and defendant has brought the case to this Court on writ of error. The principal errors assigned relate to the sufficiency of plaintiff's evidence to support the verdict, and to the action of the court in refusing to give certain instructions asked for by the defendant.
Plaintiff's intestate, a child two and a half years old, got upon defendant's railroad track in the town'of Welch, and was killed by an engine and train in charge of defendant's servants. The record presents these questions, viz: Did the engine crew keep a proper lookout for helpless and irresponsible trespassers on defendant's tracks, and if not, was their failure to do so the proximate cause of the child's death? Defendant's liability depends upon a proper answer to these questions, because it is the well settled law of this state, that the engineer and fireman must keep a reasonable lookout for children and helpless trespassers upon the track. Gunn v. Railroad Co., 42 W. Va. 676; Dempsey v. Railroad Co., 69 W. Va. 271, 71 S. E. 284.
Jim Brown, a witness for plaintiff, is the only witness who locates definitely the place where the engine was at the time the child came upon the track. He was hauling a load of goods from the depot, and was at a point forty-nine feet from the place where the child was hit by the engine. From his position he could see both the engine and the child, and, seeing the child's danger, he hallooed to the trainmen, and not attracting their attention, he says he jumped from his wagon and ran to the track to rescue her, and reached it in time to save another child that was on the track about eight or ten feet from the child that was killed. He also succeeded in catching hold of Juanita Hunt's hand, but not until it was too late to save her. The wheels of the truck caught her. He says that he himself was struck by the cylinder of the engine and thrown down. On the day before the case was tried, he pointed out to W. C. Morgan, a civil engineer, the place where he was standing, and. the respective points on the track where the approaching engine and the deceased were, when deceased came npon the track. Mr. Morgan measured the distances between the points, shown him by Brown, and testifies that the two points on the railroad track measured one hundred and twenty-five feet apart. It is proven, and not denied, that the train was running at a rate of speed not exceeding, in the opinion of any witness, ten miles an hour, and could have been stopped in a distance of from sixty to eighty feet, and it is proven that it was in fact stopped, after the brakes were applied, in a distance of seventy feet. Therefore, if the engineer had seen, the child when she first came upon the track, and had used diligence to stop his train, he could have done so before striking her. But, for some distance along the railroad, in both directions from the place of accident, the track curved to the left. The engineer's position was on the right hand side of the engine, which placed him on the outside of the curve, and made it impossible for him to see the track very far ahead. He testified that he was at his place of duty in charge of his engine, that on account of the curvature of the track the front of his engine obstructed his view along the track and that he did not see the child until after his engine had struck her. There is no evidence that he could have seen the child from his position on the engine, in time to stop his train. There is some evidence, however, tending to prove that he was not on his engine at the time. Jim Brown says that, after the train stopped, he saw the engineer come out of one of the coaches. He also says that, when he first saw the child on the track, he looked toward the engine and hallooed, but could not see the fireman, whose place on the engine was on the inside of the curve and nearest to witness. But Brown is contradicted by both the engineer and the fireman who testify that they were in their respective places on the engine. The fireman says he first saw the child as the engine was crossing Wyoming street. That is shown to be about seventy feet from where the child was struck. It is proven that, from the fireman's place on the engine, he had an unobstructed view along the track, ahead of the engine, for a distance of over four hundred feet.
There is irreconcilable conflict between the testimony of Jim Brown and Jesse Mathews, witnesses for plaintiff, on the one hand, and the fireman and engineer, witnesses for defendant, on the other. Consequently, if the facts testified to by Brown and Mathews are sufficient to prove negligence on the part of defendant company, then we have no right to disturb the verdict, because the question of the credibility of witnesses is a matter solely for jury determination. It was the duty of both engineer and fireman to keep a reasonable lookout for children and other helpless tresspassers upon the track, so far as it was consistent with their other duties in the running of the train. They both say they were at their respective places on the engine, and the fireman says he was keeping a lookout. But they are both contradicted by the facts, as they are made to appear from the testimony of witnesses Brown and Mathews. These witnesses say the fireman was not in his place on the engine, that his window of the cab was next to them, and in plain view and that they looked and could see no one on the engine. Brown also says that after the train had stopped, the engineer came out of one of the coaches. If this statement of Brown's is true, it tends to prove that the fireman was the only one on the engine, and that he was on the opposite side, running the engine in the engineer's stead, and was in a position where he could not see the tracks in front of him, on account of the curve in the track. But, in any view, their testimony, if true, proves that the fireman was absent from his usual place on the engine at the time of the accident. The fireman says he got in the engine cab as the train was crossing the bridge, and when asked why he did so, replied that it was "necessary for a man to be on the lookout coming into Welch or any passenger stop, as you can not tell who may be...
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