Payne v. The Va.n Ry. Co., (No. 10011)

• Citation: 131 W.Va. 767
• Decision Date: 16 November 1948
• Docket Number: (No. 10011)
• Court: Supreme Court of West Virginia
• Parties: H. W. Payne, Admr. of Estate of j. H. Foster v. The Virginian Railway Co., et al.

131 W.Va. 767

H. W. Payne, Admr. of Estate of j. H. Foster

v.The Virginian Railway Co., et al.

(No. 10011)

Supreme Court of Appeals of West Virginia.

Submitted September 14, 1948.

Decided November 16, 1948.

1. Instructions

"Ordinarily, when contributory negligence of the plaintiff is relied on as a defense, it is prejudicial error to give for the plaintiff an instruction which directs the jury to find for the plaintiff if certain recited facts are believed by the jury from the evidence, but which instruction does not specifically negative contributory negligence on the part of the plaintiff. The error involved in the giving of such erroneous instruction is not corrected by the giving to the jury of other instructions covering contributory negligence." Syllabus, Nichols v. Mining Co., 113 W. Va. 631.

2. Negligence

A person not in the employ of a railway company, and not having the status of an invitee, but who uses the railroad yards of such company as a walkway over a portion thereof which pedestrians are accustomed to use for such purpose, but not at a public crossing, is a trespasser, and said railway company owes no higher duty of care to him than to refrain from wantonly or wilfully injuring such person.

Error from Circuit Court, Fayette County.

Action by H. W. Payne, administrator of estate of J. H. Foster, deceased, against The Virginian Railway Co., and others, for death of deceased when struck by a train of defendant. To review an adverse judgment, defendants bring error.

Judgment reversed; verdict set aside; awarded a new trial.

Kenna and Riley, Judges, concurring.

William L. Lee and John R. Pendleton, for plaintiff in error.

Mahan, White, Higgins & Laird, Chas. E. Mahan and Carl B. Vickers, for defendant in error.

Lovins, Judge:

J. H. Foster was struck and instantly killed by a backing shifter train of The Virginian Railway Company, while he was walking in the yards of the railway company located in the village of Page, Fayette County, West Virginia. This action of trespass on the case, instituted by H. W. Payne, as administrator of the estate of J. H. Foster, against the railway company and H. E. Williams, an employee of the railway company, resulted in a verdict for plaintiff in the amount of ten thousand dollars. The Circuit Court of Fayette County entered judgment on the verdict, to which judgment a writ of error was granted by this Court.

The village of Page is a community of an estimated population of seven hundred to one thousand people, located on the main line of The Virginian Railway Company. The inhabitants of the village engage principally in coal mining and railroading. The village stretches along a creek which flows to the west from the east. Just north of, and parallel to, the creek is a paved highway, and to the south of the creek are the railroad yards of The Virginian Railway Company, running parallel with the creek.

The defendant's shops are located in the westerly portion of the community, while the easterly portion of the village is occupied and used by a coal company and its employees. The railroad yards, in which plaintiff's decedent was killed, extend from the defendant's shops approximately one-half to three-fourths of a mile to the eastern edge of the village. These yards consist of the main line tracks which are nearest the creek, and two or more sidetracks running south of and parallel thereto.

Signs are posted at either end of the yards, reading as follows: "Virginian Railway Property; Keep Off."

Dwelling houses and commercial buildings are located in the eastern portion of the village along both sides of the railroad tracks, and up hollows therefrom. There is a dirt road which crosses the railroad yards in the eastern end of the village at a public grade crossing, and therefrom runs generally parallel to the railroad tracks, in a westerly direction, for a distance variously estimated at four hundred to a thousand feet to another public crossing which is located in the vicinity of the coal company's commissary. It is not disputed that this dirt road is very rough and is seldom used by the residents of the community: instead, it is shown by the evidence, without dispute, that pedestrians walk over and along the railroad tracks at any time and place in going from one part of the village to another. It is fairly well shown by the evidence, and not disputed, that such use of the railroad tracks is made at night, and more particularly on Saturday "payday nights" between the hours of ten and one o'clock. This use of the tracks by pedestrians has existed for a number of years and in recent years has been accentuated by reason of congregating places being recently located along the tracks in the eastern part of the village.

Located in the eastern portion of the village are a theater, a church or churches, and a beer parlor, the latter of which appears to have been a gathering place for many of the people of the village, particularly on "payday" Saturday nights. This beer parlor is located about thirty feet north of the railroad tracks and between the tracks and the creek. In the immediate vicinity of this beer parlor is the easternmost public grade crossing over the railroad yards, hereinabove referred to. A few hundred feet west of the beer parlor is a railroad siding which extends to the north over a bridge across the creek. Underneath this bridge is a footbridge which leads from the highway, across the creek, and up an embankment to the railroad tracks.

On the night of September 15, 1945, a "payday" Saturday, J. H. Foster and his wife, who lived in a house located in a hollow south of, and at a right angle to, the railroad tracks and opposite the coal company's commissary, left their home and went to the beer parlor, where they met Bill Coleman, and drank one bottle of beer apiece. It was then approximately 11:50 P. M., and the beer parlor was closing. Plaintiff's decedent, having purchased a case of beer, left the beer parlor to go home with his wife and Coleman. Having climbed the embankment between the beer parlor and the railroad tracks, they ascertained that an eastbound coal train was located on the sidetrack next to the main line track and was blocking the public grade crossing located near the beer parlor. It is not clear whether this coal train was stopped when they first reached the tracks or was moving. In either event the train started moving, slowly, shortly thereafter.

When the Fosters and Coleman saw the eastbound coal train, they started walking down the railroad track between the main line and the track on which said eastbound coal train was proceeding. It appears that the distance between the tracks was seven to nine feet. Plaintiff's decedent and Coleman were walking in front, carrying the case of beer between them., and Mrs. Foster was following closely behind. Having walked down the tracks for a few hundred feet, they noticed that the eastbound coal train was being pushed by two pusher engines. When they saw the engines, which were then approaching near them, they stepped over on the main line tracks, plaintiff's decedent being just inside the tracks and Coleman being on the southern end of the ties underlying the tracks.

Coleman testifies that when they stepped on the main line track, he did not look for a train which might be approaching from either direction thereon, but he positively testified that he heard none. Mrs. Foster testified that both she and her husband looked in each direction as they were stepping on the tracks, and, seeing and hearing no train, proceeded on the tracks. Mrs. Foster testified further that after she had walked approximately thirty steps, she and her husband again looked back to the east to see if a train was coming on the main line track from that direction, but failed to see one. After they had walked four of five steps further, they were struck from behind by the shifter train which was travelling at a rate of eight or ten miles per hour, in a westerly direction on the main line track. J. H. Foster was instantly killed; Mrs. Foster received injuries resulting in the amputation of one leg; and Coleman suffered lesser injuries. The accident occurred at a place in the vicinity of the siding which went to the north and near the footbridge, both of which are hereinbefore described.

The shifter train which struck plaintiff's decedent was composed of a locomotive, a tender and a caboose. It had been shifting cars east of the village of Page, and was moving in a westerly direction on the main line toward defendant's shops to turn in the equipment. The caboose was coupled to the locomotive tender and the locomotive was the easterly unit.

As has been stated, both Coleman and Mrs. Foster testified that the caboose by which they were struck had no marker or other lights; that the engine failed to sound its whistle or ring its bell; and that accordingly they did not know of its approach. They are partially corroborated in respect to the lights on the caboose by four other witnesses who arrived at the scene of the accident shortly thereafter, and testified that no lights were then burning on the caboose. Another witness for the plaintiff testified that only one light was burning, and that light was a lantern inside the caboose. A sixth witness testified that "marker lights" were burning on the caboose, but that they were located between the tender and the caboose and not on the westerly end of the caboose.

The conductor, two brakemen, engineer and fireman employed on the train testified that a crossing warning, consisting of two long, a short, and a long blast, of the locomotive whistle was blown for the public grade crossing located near the beer parlor. The members of the train crew further testified that an electrically-operated bell was ringing continuously from the time they entered the eastern end of the yards until a short time after the accident occurred; and that the rear headlight of the engine, located atop the tender, was...