Nichols v. Raleigh-Wyo. Coal Co., (No. 7142)

• Decision Date: 05 April 1932
• Docket Number: (No. 7142)
• Citation: 112 W.Va. 85
• Court: West Virginia Supreme Court
• Parties: Earl Nichols v. Raleigh-Wyoming Coal Company

112 W.Va. 85

Earl Nichols

v.Raleigh-Wyoming Coal Company

(No. 7142)

Supreme Court of Appeals of West Virginia.

Submitted March 29, 1932.

Decided April 5, 1932.

Trial

Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.

Error to Circuit Court, Raleigh County.

Action by Earl Nichols, administrator, against the RaleighWyoming Coal Company. Judgment in favor of the defendant, and the plaintiff brings error.

Reversed; verdict set aside; new trial awarded.

John Q. Hutchinson and Clay S. Crouse, for plaintiff in error.

Brown, Jackson & Knight, and File, Goldsmith & Scherer, for defendant in error.

Woods, Judge:

This is an action of trespass on the case by the administrator (husband) of Kathleen Nichols, deceased, to recover damages for wrongful death. After plaintiff had rested, the trial court sustained a motion to direct a verdict for the defendant company. So, the question before us is whether the trial court erred in taking the case from the jury.

Defendant, a coal mining company, was conducting operations at Edwight, and had been so engaged for a number of years prior to the date of the accident and death of plaintiff's decedent. The tipple and sidetracks of the C. & 0. Ry. Company, used in connection therewith, were located across Hazy Creek from the town of Edwight. A couple of hundred yards below the tipple, the company maintained a footbridge, which it appears was used by its employees and their families in going to and from Edwight to the post office, theater, school and churches. A short distance above the tracks the company maintained some twenty houses for its employees, the same being located on both sides of a narrow roadway, which parelleled the tracks. Plaintiff and his family, including decedent, lived in one of these houses, almost directly opposite the lower end of the tipple. The roadway, made of bone and coal refuse, was very undesirable for foot travel, because it was very dirty, and also because the distance by such route to the town of Edwight was about twice as far as that by way of the footbridge. The testimony is to the effect that practically all the miners and their families used the footbridge in walking to and from Edwight, and that they crossed the tracks wherever they could find an opening, and, if none, some would crawl under the cars. While one of plaintiff's witnesses stated that the tracks were crossed against the wishes of the defendant company, there is nothing to show that any measures were taken to stop this practice. This witness, as well as several others, stated that the company maintained at least two signs along the tracks bearing the word "Da...