Norfolk & W. Ry. Co. v. Hensley's Adm'R
| Decision Date | 09 January 1934 |
| Parties | Norfolk & W. Ry. Co. v. Hensley's Adm'r. |
| Court | United States State Supreme Court — District of Kentucky |
1. Appeal and Error. — Where evidence is conflicting, appellate court cannot set aside verdict merely because more witnesses testified to facts contrary to verdict than in support of verdict.
2. Railroads. — Whether deceased was struck directly at railroad crossing or at some distance therefrom on track, held for jury.
3. Appeal and Error. — Appellate court cannot reverse judgment for error in instruction or other error unless it affirmatively appears that substantial rights of complaining party were prejudiced (Civil Code of Practice, secs. 134, 338, 756).
4. Trial. — Refusal to instruct that, under West Virginia law, railroad was liable only for wanton and gross negligence if deceased was struck elsewhere than at crossing held not prejudicial where, under given instruction, jury were directed to find for railroad if not believing that deceased was negligently struck at crossing.
Appeal from Martin Circuit Court.
WILLIAM R. McCOY, F.M. FIVINUS and HOLT & HOLT for appellant.
J.B. CLARK and A.J. KIRK for appellee.
Affirming.
Sam Hensley, administrator of the estate of John Hensley, deceased, has recovered judgment in the Martin circuit court against the Norfolk & Western Railway Company for $1,600 damages for the death of his intestate alleged to have been caused by the negligent operation of one of the company's engines or trains and the latter is appealing.
The accident occurred at or near a point where a public road crosses appellant's tracks at Stonecoal in Wayne county, W. Va. There are seven tracks in appellant's yards and at Stonecoal these tracks parallel Tug river. U.S. highway No. 52 lies between the tracks and the river. Nearest the highway is the track for east-bound trains, next to it is the east-bound passing siding, then two storage tracks, then the west-bound passing siding, and north of it, the track for west-bound trains. A county road leaving highway 52 crosses these tracks at right angles and east of this crossing is another track known as the hot box track.
About 12 o'clock on the night of September 19, 1931, a west-bound coal train pulled into the west-bound passing siding for the purpose of permitting the passing of a west-bound passenger train. Before reaching the crossing, the headlights of the engine revealed the body of deceased between the rails of the main west-bound tracks. One of appellant's surgeons was immediately summoned, and, at his direction, the injured man was placed upon the passenger train and taken to a hospital at Kenova, W. Va., where he died the following day.
Leonard Spalding, Joe Spalding, and Lee Parsley testified that they were in an automobile at the point where the county road leaves highway 52 about 9 o'clock and saw and talked with deceased; that they asked him if he had any liquor and he told them he might be able to find some; that when he left them he started across the tracks, but an east-bound train cut off their view and they saw nothing more of him. There is a stand-pipe where engines take water a short distance west of the crossing and next to the west-bound track. Two of these witnesses testified that about time the train passed they saw or heard another engine at the standpipe. Lee Marcum, Van Marcum, and Alex Sammons testified that they and Erma Marcum caught a freight train at tunnel No. 4, 4 or 5 miles from the crossing, intending to go to a dance at Sand Bar, but that the train was running so rapidly they were unable to get off and were carried on to Williamson, W. Va. They were five or six cars back of the engine, and, when the train reached the yards at Stonecoal, they saw a loose engine and tender on another track backing in the same direction they were going strike a man who was standing on the road crossing and hurtle him through the air. They did not see where he fell. They all testified that there were no lights on this engine or tender and that they did not hear a bell or whistle sound. Sam Hensley testified that he measured the distance from the crossing to where the body was found and that by his measurement it was 234 feet, however, a number of witnesses for appellant estimated the distance to be greater. T. H. Vance, car inspector employed by appellant who lives in one of its houses on the north side of the yard at Stonecoal several hundred feet east of the crossing, testified that he saw and talked to John Hensley at his home about 10 or 10:30 the night he was killed; that he sat on the porch and talked with him for an hour or more; that when Hensley left he started toward the crossing walking on the path over from the hot box track; and that he warned him to be careful. He and a number of other witnesses introduced by appellant testified that they saw marks, blood, and hair on thirteen or fourteen ties east of where the body was found.
In rebuttal, Sam Hensley testified that on the night of the accident Dallis Sammons, an employee of and witness for appellant, pointed out to him the place where the body was found and said something about blood and hair on the ties, but, on account of the darkness, he was unable to see; that he returned after daylight and found blood on the ties west of where the body was found, but that he examined the ties east of that point and found no blood.
As grounds for reversal it is argued (1) that the court erred in overruling appellan...
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