Morris' Adm'x v. Baltimore & O.R. Co.

• Decision Date: 12 March 1929
• Docket Number: 6296.
• Parties: MORRIS' ADM'X v. BALTIMORE & O. R. CO. et al.
• Court: West Virginia Supreme Court

147 S.E. 547

107 W.Va. 97

MORRIS' ADM'X v. BALTIMORE & O. R. CO. et al.

No. 6296.

Supreme Court of Appeals of West Virginia.

March 12, 1929

Submitted March 5, 1929

As Modified, on Denial of Rehearing, April 15, 1929.

Syllabus by the Court.

Means of warning should be as effective on a backing train as on an advancing unreversed train, although not necessarily the same. Whether this duty is performed is ordinarily a jury question.

One expecting to cross a railroad crossing has the right to assume that the usual signals will be given by an approaching train.

In the absence of evidence of the conduct of one attempting to cross a railroad crossing, it will be presumed that he used ordinary care, his safety being involved.

It is the duty of one intending to cross a railroad crossing to exercise ordinary care for his own safety. That requirement generally demands that he look and listen in such manner as would be effective for the approach of a train. His failure to look and listen in the usual manner, however does not in every case evince failure to use ordinary care as a matter of law. Circumstances may arise which make the question one for the jury.

Whether the speed of a train is dangerously rapid depends on the circumstances of the case.

The purpose of a lookout on a backing train is to prevent injury. Whether he performs his duty is ordinarily a jury question.

Compensation is a proper element of damages for death by wrongful act under section 6, chapter 103, Code.

Error to Circuit Court, Preston County.

Action by William Morris' administratrix against the Baltimore & Ohio Railroad Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.

P. J Crogan, of Kingwood, and Kilmer & Byrer, of Martinsburg, for plaintiffs in error.

F. E Parrack and Gibson & Mattingly, all of Kingwood, for defendant in error.

HATCHER J.

The plaintiff recovered $10,000 damages in the circuit court, for the death of her decedent. He was killed by a passenger train of the defendant on the night of December 24, 1926, at a country road crossing while riding in a Ford coupé owned and driven by his daughter Margaret, aged 19. The road and the railroad intersect at right angles. The road is straight in the direction from which the coupé came for a distance of 500 feet from the crossing, and the track for a distance of over 3,000 feet in the direction from which the train came. The land between is comparatively level; but the view of the track by a traveler approaching the crossing along the road is obstructed to some extent by a cut on the railroad 10 feet in depth, about 700 feet from the crossing and sloping gradually to it, and by a store and garage on the road. At 500 feet from the crossing a traveler on the road can see a train 661 feet from the crossing. As the traveler approaches the crossing his view of the railroad becomes extended except as interrupted by the store, and the garage. The store is about 50 feet from the track, and after passing the store the view of the track from the road is uninterrupted for a distance ranging from 999 feet at the store to 3,200 feet within 20 feet of the crossing.

The accident occurred about 10 p. m. The collision is described by the daughter as follows: "*** It was a bad, foggy night, and we drove slowly down toward Mt. Vernon. When we got down there in sight of the crossing, just about--in good sight of the place where the railroad crosses the road, I looked both ways, of course, as I always did, and glanced my eyes both ways for the train, and I didn't see anything but saw a light up toward Burke, and I don't remember the words I said to dad, but I called his attention to this light; it was rather faint, it wasn't a pronounced light, but was faint on account of the fog, and I called his attention to that, and he said that was the gob pile that was burning, or slate or whatever it was, put out from the mine; sometimes it flared up, I guess, and sometimes it didn't; so we drove on down toward the store, toward the crossing, slowly; I always drove slowly, and that night it was foggy; I couldn't drive fast if I wanted to; and I got down almost to the crossing, practically up to it, I glanced to the right and saw a long light that I suppose was lights from the coach windows from the train; I saw no light at all, only that; no light on the engine, just a long light, and it seemed to be right against the car, so I just pulled the gas leaver down and went on; and I didn't say anything, and daddy said, 'Oh,' and that is the last I remember he said; and it was just *** a little bit, until the train hit. ***"

The witness further states that she was listening as she approached the crossing, and that neither a whistle nor a bell was sounded; that she was not driving faster than 10 miles an hour at the time; that her car could have been stopped "pretty quick"; that she did not see the train until the wheels of the coupé were "right up at the rail or on the rail"; that she could have seen the lights of the train after she passed the store if she had looked, but that she was looking at the crossing; that she and her father were thoroughly familiar with the location of the crossing; that the coupé was "all closed up" at the time of the accident, except that the glass on the right side was down "a little bit from the top"; and that her father was on the side of the automobile next to the train.

The train consisted of two empty passenger coaches, a baggage car, tender, and engine. It was being operated backwards and at a speed of from 15 to 20 miles an hour. The coupé was pushed by the train about 150 feet beyond the crossing. At the place where Miss Morris and her father discussed the light, a train which was more than 600 or 700 feet from the crossing would not have been visible. As the train was moving about twice as rapidly as the automobile, the train must have been about 1,000 feet from the crossing at the time of this discussion, and consequently did not furnish the light which the occupants of the coupé saw.

The evidence for the defendant is that the engineer blew the regular crossing whistle and set an automatic bell on the engine to ringing at about 1,000 feet from the crossing; that an air whistle on the leading car was blown constantly until within a few feet of the crossing; that several lights were lit in the coaches; that on the front of the leading car were two red signal lights commonly called "markers," and a brakeman's lantern; that the conductor, the brakeman, and another railroad employee were standing in the vestibule of the leading car; that these three saw the automobile approaching along the road before it passed the store; that they thought the automobile would probably stop for the crossing until after it passed the store; that the emergency brake could be applied from the rear of the train as well as from the engine; and that it was so applied when the front of the leading car was about 35 feet front the crossing. An expert testifying for defendant was of opinion that at 15 miles per hour the train could be stopped at about 220 feet, and at 18 miles per hour at about 312 feet. It does nor appear how far from the train one should have heard the air whistle. Neither the engineer nor the fireman states that he heard it. It was heard by Mrs. Robert Wolfe, who resides at the store, and by C. J Bolyard, who resides about 59 feet from the crossing. But his wife, who stated that she heard the steam whistle, did not hear the air whistle. The wife of decedent and another witness, both of whom were near enough to have heard the statutory signals, say that they did not hear them. The evidence does not disclose how far the lantern and the markers made the track visible in front of the leading car.

The defendant contends (1) that it was entirely free from negligence; (2) that the decedent was guilty of gross negligence; (3) that plaintiff was permitted to introduce improper evidence; and (4) that it was prejudiced in the giving and refusal of certain instructions.

1. It is recognized by all the authorities that the operation of a train backwards at night over a road crossing is attendant with a great amount of danger to travelers, and consequently a railroad company should use the utmost care to prevent injury. 33 Cyc. 954; Waid v. C. & O. Ry. Co. (C. C A.) 14 F. (2d) 90, 92. In Bowles v. C. & O. Ry. Co., 61 W.Va. 272, 275, 57 S.E. 131, this court virtually held that the means of warning should be as effective on a backing train as on an advancing unreversed train. That requirement seems eminently fair to railroads, in consideration of the fact that a train is ordinarily just as dangerous, if not more so, when backing, as when proceeding forward. The opinion in the Bowles Case quotes from Wood on Railroads as follows: "As a matter of common knowledge such a practice is peculiarly dangerous, and therefore creates a duty of unusual care on the part of the company. There should be abundant warning, not only by the usual signals of bell and whistle, but there should be a flagman near the track, or a watchman on the nearest approaching car, to warn travelers who are near. In this as in other cases the exact measure of the company's duty, and the question as to whether it has been discharged, is for the jury." It is beyond question that the headlight on an advancing unreversed train at night ordinarily gives ample warning, particularly on a long straight track such as the one approaching this crossing. The evidence as to the effectiveness of the signals given by defendant on this occasion does not arise to that high degree of certainty which would justify a finding as a matter of law that they were as efficient as a headlight would have been. Therefore,...