Niland v. Monongaliela. West Penn Pub. Serv. Co..

• Decision Date: 11 December 1928
• Docket Number: (No. 5809)
• Citation: 106 W.Va. 528
• Parties: Eleanor Niland v. Monongaliela. West Penn PublicService Company et al.
• Court: West Virginia Supreme Court

106 W.Va. 528

Eleanor Niland

v.Monongaliela. West Penn Public Service Company et al.

(No. 5809)

Supreme Court of Appeals of West Virginia.

Submitted September 25, 1928.

Decided December 11, 1928.

1. Railroads Electrically Operated Railroads Should Give Such

Warning for Crossings as Ought to be Apprehended by Persons Using Same Who Are Possessed of Ordinary Faculties in Reasonably Sound, Active and Alert Condition.

Electrically operated railroads should give such warning for crossings as ought to be apprehended by persons using the same who are possessed of ordinary faculties in a reasonably sound, active and alert condition. (p. 532.)

2. Evidence Law Will Not Sustain Recovery Upon Theory Not

Justified by Evidence.

The law will not sustain a recovery upon a theory not justified by the evidence. (p. 533.)

Maxwell, Judge, absent.

Error to Circuit Court, Marion County.

Action by Monongahela West Penn Public Service Company against Eleanor Niland for an aggrieved verdict rendered against it.

Judgment reversed; verdict set asidenew trial awarded.

Victor H. Shaw, for defendant in error.

James A. Meredith and Ernest R. Bell, for plaintiff in error.

Litz, Judge:

The defendant, Monongahela West Penn Public Service Company, is aggrieved by the judgment of the circuit court rendered upon a verdict of $9,000.00 against it and the defendant, William E. Gregg, in favor of the plaintiff, Eleanor Niland, for personal injuries sustained by her in a collision between a motor work car, which it owned and operated over its electric railway, and a Grant sedan automobile owned and operated by said William E. Gregg, in which the plaintiff was riding as his guest.

The accident occurred in the afternoon of August 2, 1924, on Fleming Crossing, the intersection of a state highway (the Country Club Road) and the electric railway of the public service company near the city of Fairmont. The plaintiff (a young woman residing in Brownsville, Pennsylvania) was returning home by way of Clarksburg and Fairmont from an extended motor trip through Maryland, Virginia and West Virginia, in a Grant sedan automobile, owned and operated by William E. Gregg, and in which his daughter, Inez Gregg, was also riding. Michael Niland (brother of plaintiff) and. several other friends and relatives, traveling in a Studebaker sedan automobile owned and operated by him. were also members of the party. The Studebaker car, being in the lead, on reaching a junction of the Country Club road, and what is known as the Locust Avenue Route to Fairmont, about seventy-five feet from the crossing, turned left into the Locust Avenue route and stopped. After inquiring at a nearby garage the way to Fairmont, Michael Niland attempted to signal the driver of the Gregg car (then approaching) to stop.

Not observing the signal Gregg continued his course over the country club road, leading straight ahead, to the crossing where his automobile and the work car collided.

The road, in the direction the automobile traveled, was practically straight for 300 or 400 feet before reaching the crossing. A traveler, looking right and left along this course, could have seen, at intervals, portions of the railway track to the left and right. Between the fork of the road and the crossing to the right was a detour sign pointing to the Locust Avenue road, and to the left, ten and one-half feet from the improved surface of the road stood a signal pole supporting a "Railroad Crossing" sign (consisting of two parallel boards), several electric lights, and an electric bell which operated as cars approached over the railway track from a point of contact 722 feet from the crossing. To the left of the crossing was also a sign reading: "Wait Death is so permanent." The bell, which is audible for one-fourth of a mile, wTas ringing from the time the work car reached the point of contact until after the collision. The road from Clarksburg to Fleming crossing intersects several times with the interurban line. In the direction of the crossing it ascends from a point 100 feet from the crossing to a point 20 feet therefrom to a grade of 6.4%; from the latter point to the center of the crossing it descends to a grade of 5.6%; and from the center of the crossing to a point 100 feet beyond it again ascends to a grade of 9.55%.

There are many assignments of error. But as the plaintiff's right of recovery, in the first instance, depends upon the establishment of negligence on the part of the defendant, it is useless to discuss the allegations of error generally unless negligence is proved. The negligent acts of defendant alleged in the declaration follow: (1) failure to keep a proper and sufficient look-out at the crossing;(2) failure to blow a whistle and ring a bell when approaching the crossing; (3) failure to bring the railroad car to a stop when it saw or by the exercise of ordinary care it should have seen the Gregg automobile; (4) failure to bring the railroad car to a stop after the automobile was on the crossing so as not to shove and crush the same.

If by the first allegation of negligence the plaintiff means that it was the duty of the defendant to keep a watchman at this crossing, the plaintiff has signally failed to...