Melton v. Chesapeake
| Decision Date | 04 February 1913 |
| Citation | 71 W.Va. 701 |
| Court | West Virginia Supreme Court |
| Parties | Melton v. Chesapeake & Ohio Railway Co. |
1. Railroads Accident ot Grossing.
A partial but substantial equipment by a railroad company of a portion of its track through a city, town or village in the manner usually adopted at public crossings, and as a convenient means of access to and from a nearby public highway, operates as an implied invitation to the public to so use such crossing; and, if so generally used by it that the company through its employes must be cognizant thereof, the company is thereby charged with the duty of exercising the same degree of care as the law imposes at a public crossing. (p. 703).
2. Same.
Propelling a train of cars by an engine in mid-train, over such frequented crossing, on a dark night, without signal or warning or light on or about the forward car, is negligence, and if injury results, the operating company is liable therefor in damages to the person so injured, in the absence of negligence on his part contributory thereto. (p. 706).
3. Negligence Contributory Negligence Burden of Proof.
Where plaintiff has shown negligence on the part of defendant, if the latter relies on contributory negligence of plaintiff to defeat recovery, the burden is on defendant to prove such negligence, unless it is disclosed by plaintiff's evidence or may be fairly inferred from all the circumstances; and, in the absence of such proof or inference, the person injured must be presumed to be without fault. (p. 706).
4. Railroads Accident at Crossing Negligence.
A case holding the railroad crossing at which the injury occurred to be of such public character as requires the operating company to exercise reasonable care to prevent injury, and the company liable in damages for injury caused by its negligence in that respect. (p. 703).
Error to Circuit Court, Kanawha County.
Action by J. J. Melton, Sheriff, against Chesapeake & Ohio Railway Company Verdict and judgment for plaintiff, and defendant brings error.
Affirmed.
Enslow, Fitzpatrick, Alderson & Baker, for plaintiff in error.
A. M. Belcher, for defendant in error.
This action was brought to recover damages for the negligent killing of Samuel Canterbury, plaintiffs intestate. A verdict and judgment in favor of the plaintiff were obtained in the circuit court. The case is now before us on writ of error. Three grounds of error are relied on in the defendant's brief: first, that improper testimony was allowed to go to the jury; second, that the jury was improperly instructed; third, "that upon the merits there should have been a verdict for the defendant".
Canterbury was killed in Marmet, a village of eight hundred inhabitants. His mangled body was fonnd on defendant's track, ten feet from a crossing, a short time after one of its freight trains had passed. Competent proof sufficiently attributes the cause of his death to a collision with defendant's train. This fact the defendant only formally denies.
The evidence of which the defendant complains relates to the character of the crossing. It is true, no highway established under the forms prescribed by law crossed the right of way at that point. But the proof shows a long-continued use of the place where the accident occurred as a crossing. The railroad runs through and divides the town. The residents of the village used the crossing from fifteen to twenty years, in all respects as if it were in fact a public crossing. True, a fence was maintained by the defendant along its track; but it also constructed and maintained a gateway through the fence to the crossing. A driveway extended from different parts of the village direct to the gateway. For years prior to and at the time of the accident, it had been and was adopted by the public and in constant use as a ready means of access to and from the county road. The defendant placed heavy planks on each side of the outside rails, filled up with ballast the space between the ties, and kept the crossing in repair. Canterbury was killed some time about seven o'clock in the evening. He left his brother at Well's store, located two hundred feet east of the crossing, about an hour before his death, and was last seen, immediately after he left the store, approaching the crossing, where he had arranged to meet his brother after going to the post office. The night was dark. No one saw the accident. The engine was mid-train. It carried a head-light, but other cars preceding the engine obstructed the light. His body was found between seven and eight o'clock. His toes, fragments of clothing, and bloodstains were found on the crossing. The proof is abundant to show that his death was caused by the defendant's train; and it is liable for the injury, provided the public character of the crossing was such as to require ordinary diligence and care by its agents in order to avoid injury to persons and property using it as a public crossing.
We think the evidence is affirmatively sufficient to support the finding of the jury, as virtually it did find, that the place of in- jury was to the extent public that it became and was the duty of the defendant in the operation of its trains to exercise a reasonable degree of care and diligence for the safety of the persons using it as a crossing, and that it was negligence on the part of the defendant to approach the crossing in the manner we have stated, in darkness and without signal or warning of any kind. In Bowles v. Raihvay Co., 61 W. Va. 272, it is said: "The precaution must suit the circumstances, and be adequate under the circumstances." Bowles was killed at a public crossing; but the defendant sought to avoid liability because he had approached the crossing by walking thereto on the track. This it urged was negligence on his part; but the Court decided otherwise.
In Ray v. Railway Co., 57 W. Va. 333, 338, Judge BRaNNoN, quoting from Elliott on Railroads, says: "In order to impose upon the company the duty to treat a place as a public crossing, those who use the place as a crossing must either have a legal right to so use it, or must use it at the invitation of the company; and ...
To continue reading
Request your trial