Melton v. Chesapeake & O. Ry. Co
| Decision Date | 24 March 1908 |
| Citation | 61 S.E. 39,64 W.Va. 168 |
| Court | West Virginia Supreme Court |
| Parties | MELTON, Sheriff. v. CHESAPEAKE & O. RY. CO. |
A person using a railroad track as a footpath for his convenience, elsewhere than at a public crossing, and injured by a train while so doing, cannot recover damages, unless the company is guilty of gross and wanton negligence.
[Ed. Note.—For cases in point, see Cent, Dig. vol. 41, Railroads, § 1220.]
Signals or lights or watchmen are not required on a backing train elsewhere than at public crossings to warn trespassers using the track for their own convenience as a footpath.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1261.]
(Syllabus by the Court)
Error from Circuit Court, Kanawha County.
Action by J. J. Melton, sheriff, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Simms, Enslow, Fitzpatrick & Baker, for plaintiff in error.
Linn, Byrne & Linn and Henry S. Cato, for defendant in error.
BRANNON, J. Peter Myers was killed by a locomotive and tender on the Chesapeake & Ohio Railway, and, his administrator having recovered a judgment for $2,000, the railroad company has appealed the case to this court.
The great question of the case is: Was Myers killed at a public crossing, or while using the track elsewhere for walking? for the rights of Myers and the liability of the defendant would be different in the two cases. The court put to the jury this interrogatory: "Was Peter Myers killed at a public crossing?" The answer was, "Yes." This answer is utterly unwarranted by the evidence. If anything can be said to be established by the oral evidence and undisputed physical facts, it is that Myers was struck by the tender of the locomotive at least 75 yards from the public crossing while using the track for a walkway. The case is void of evidence to the contrary from either side. A plaintiff's witness, Linville, saw Myers walking along the county road approaching the crossing. Myers was in advance of Linville 75 yards, both going to the crossing. Myers thus reached it before Linville did. When Linville reached the crossing, Myers was not there, but had left the county road and gone up the railroad track. This witness saw Myers last 75 yards from the crossing on the track, going from the crossing on his way home. There is no contradiction of this witness. Not a man says that he saw Myers at the crossing. No other witness locates Myers while walking. Myers had been to a store where he purchased overalls, which were wrapped in red paper, and he was carrying this bundle when this witness observed him. At a point on the track distant 75 yards from the crossing toward the home of Myers his legs are found, and very close these overalls, and some of the red paper, and further along the track, 100 yards from the crossing, his head and mangled body are found, and his blood is found staining the snow many feet from the crossing, and not a drop is proven to have been seen at or near the crossing. A witness for the plaintiff, when asked if he saw any blood nearer the crossing, answered: "No; I never noticed any only where It first run over him there and cut him in two." Another witness for plaintiff, Murray, says that he saw a piece of the red paper in which the overalls had been wrapped, the overalls a few feet further east from the crossing, a few feet further still Myers' legs, then further still the body, and that he saw no signs of Myers being struck nearer the crossing than that paper fastened to a fish plate, and, when asked if the snow would not have shown it if Myers had been struck nearer, he replied: "I think so." He puts the paper fastened to the track 300 feet from the crossing, and that paper was, beyond any dispute, nearer the crossing than the overalls, the legs, and the head and trunk of Myers. He pointedly stated that he walked backward and forward over the ground, and saw no signs of blood between the paper and overalls and the crossing. These facts are beyond question—these physical facts. No one controverts them, or tries to do so. They must be regarded as concessa in the case, not being disputed by any evidence. How could the unfortunate Myers have been struck at the crossing in the light of these facts? This witness Linville was at the crossing lighting his lamp waiting for a...
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