Parsons v. The N.Y. Cent. R.R. Co.
| Decision Date | 15 May 1945 |
| Docket Number | (No. 9676) |
| Citation | 127 W.Va. 619 |
| Parties | Elmer Harold Parsons v. The New York CentralRailroad Company |
| Court | West Virginia Supreme Court |
1. Trial
"Before directing a verdict in defendant's favor, every reasonable and legitimate inference favorable to the plaintiff should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." Fielder, Adrnx. v. Service Cab Co., 122 W. Va. 522, Pt. 1 Syl.; Boyce. Admx. v. Black, 123 W. Va. 234, Pt. 1 Syl.
A railroad locomotive approaching a public crossing has the right of way over a vehicle or pedestrian attempting to use the crossing.
In an action at law against a railroad company for personal injuries alleged to have been incurred at a public crossing by reason of a collision between a motor vehicle and a locomotive, a plaintiff who seeks recovery on the ground that defendant railroad company failed to give the statutory signals required by Code, 31-2-8, and that such failure was the proximate cause of the injuries, has the burden of proof.
Carnefix, Admr. v. Kanawha & Michigan Railroad Co., 73 W. Va. 534, Pt. 3, Syl.
The failure of the engineer of a railroad locomotive approaching a public crossing to give the signals of warning required by Code, 31-2-8, does not relieve a traveler attempting to cross the track at such crossing from the duty to use ordinary care and caution for his own safety.
Krodel v. Baltimore & Ohio Railroad Co., 99 W. Va. 374, Pt. 2, Syl.
7. Railroads
In the absence of a joint enterprise, the negligence of the driver of a motor vehicle attempting to cross a public railroad crossing cannot be imputed to a passenger in the vehicle.
8. Automobiles
The driver and a passenger of a motor vehicle are not engaged in a joint enterprise where the passenger has no voice in directing and governing the movements of the vehicle.
Error to Circuit Court, Kanawha County.
Action of trespass on the case by Elmer Harold Parsons against the New York Central Railroad Company to recover for injuries sustained when a truck in which plaintiff was riding collided with defendant's locomotive. To review a judgment for plaintiff, defendant brings error.
Affirmed.
Alex M. Mahood and W. H. Belcher, for plaintiff in error.
Watts & Poffenbarger for defendant in error. Riley, Judge:
In this action of trespass on the case the defendant, The New York Central Railroad Company, prosecutes this writ of error to a judgment of the Circuit Court of Kanawha County in plaintiff's favor in the amount of two thousand dollars based upon a jury verdict.
Plaintiff was injured about three-forty o'clock in the afternoon of December 24, 1943, as a result of a collision between defendant's locomotive, which was traveling in an easterly direction on defendant's main line in the vicin- ity of the E. I. du Pont de Nemours plant at Belle, an unincorporated village in Kanawha County, and a threequarter ton truck operated by one Guy Potter, plaintiff's employer. The collision occurred at an open country public highway crossing known as the "du Pont Club House Crossing", leading from United States Route No. 60, which parallels defendant's track on the south, to the club house, maintained for the benefit of the employees of the du Pont Company, situated on a hill on the opposite side of the track.
At the point of the collision the railroad company's track ran in what the defendant termed an easterly and westerly direction, the city of Charleston being to the west and the village of Belle to the east of the crossing. About ten feet beyond the crossing in the direction of the club house a public road known as the Simmons Creek road turns to the right, or in an easterly direction, and the road leading to the club house turns to the left up the hill upon which the club house is located. For a distance of one hundred thirteen feet it almost parallels the railroad track, and then curves to the right in a general easterly direction to a driveway running in front of and to the rear of the club house. Defendant's railroad track is straight for a distance of at least a half mile west of the crossing.
Plaintiff was seated in the front seat of the truck between the driver, Guy Potter, and another employee, James Findley. The seat of the truck comfortably accommodated the three occupants, and was covered by a cab having doors on each side, with windows which at the time were open. Behind the seat of the cab there was a small glass window. Shortly before the collision the truck approached the crossing from the direction of Belle en route to the club house, but was stopped at the crossing in order to allow the passage of a train. It then proceeded to the club house where a delivery of merchandise was made, and was returning down the private road to the crossing where the collision occurred. At the same time defendant's locomotive was approaching the crossing in almost the same direction. From the time the truck left the club house until it reached the curve, which, as heretofore stated, was about one hundred twenty-three feet from the crossing, the view of defendant's railroad track was obstructed by a house on the hill near the curve. At the curve defendant's track came into view.
The evidence varies as to how far west of the crossing the railroad track could be seen by the occupants of the truck when the track first came into view at the curve. J. D. Moore, a civil engineer, testified for plaintiff that as one descends from the club house before arriving at the point where the railroad track first came into view, the track could be seen a distance of about three hundred feet west of the crossing and a person walking on the track can see an automobile at the same point on the road leading to and from the club house when approximately seven hundred forty-eight feet west of the crossing. Plaintiff testified that at the curve one could see the railroad for a distance of about seven hundred feet west of the crossing; that after turning the curve only fifty to seventyfive feet of the railroad could be seen from the truck, and that was to the front of the truck. T. C. Huff, a member of defendant's engineering corps, testified on behalf of defendant that at the curve in the road he could see a man standing in the center of the track eleven hundred eighty-five feet west of the crossing.
Defendant's locomotive, running light, was equipped with good brakes and in good mechanical condition. The locomotive was sixty-five feet long, fourteen feet, three inches high, measured from the rail to the top of the smokestack. The locomotive, according to various witnesses, as it approached the crossing was running between fifteen and twenty-five miles an hour. The truck as it proceeded down the last one hundred thirteen feet of the private road to the right angle turn ten feet north of the crossing was running at a speed variously estimated by the witnesses of three to ten miles an hour.
Plaintiff testified that at the curve near the top of the hill he looked down the railroad track in a westerly direction when the track first came into view and did not see the locomotive approaching, and that he could not see down the track in the direction from which the locomotive was coming as the truck was proceeding from the curve down the hill for the reason that the locomotive was behind the truck and the window in back of the cab, inasmuch as the one hundred thirteen-foot stretch of the road was not exactly parallel with the railroad track, did not furnish an outlook along the track in a westerly direction. When the truck had traversed the one hundred thirteen-foot stretch and turned at substantially right angles on the ten-foot stretch of the public road, the truck was brought almost to a stop, and plaintiff and his fellowpassenger Findley leaned back in their seats in order to give Potter an opportunity to see up the track and Potter leaned forward, evidently in an effort to obtain a view.
He further testified that both windows of the cab of the truck were open and that the engineer did not give the statutory signals by blowing the whistle and ringing the bell. At the time of the collision, engineer Malone was seated in the right seat of the cab; fireman Bailey in the left seat; conductor Cook was standing just behind the engineer; brakeman Newman was standing in the cab over by the firebox warming his hands, and another brakeman, Sherwood, stood in the gangway between the engine and tender on the right side. These witnesses testified variously as to whether the engineer performed his statutory duty in giving the required signals. Malone testified that he blew the whistle about forty feet east of the whistle post and started the automatic bell of the locomotive ringing before it reached the post. Because he was on the right side of the engine he did not see the truck. He testified, "I just turned the whistle loose and the fireman hollered, 'Blow it again', and I blowed it." Fireman Bailey testified that he saw the truck when it came...
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