Raines v. Chesapeake
| Decision Date | 21 March 1894 |
| Court | West Virginia Supreme Court |
| Parties | Raines v. Chesapeake & O. R'y Co. |
Each case must depend upon its own facts in determining what shall constitute ordinary care or reasonable prudence in the running of a railroad train.
When a given state of facts is such, that reasonable men may differ upon the question, whether there was negligence or not, the determination of the matter is for the jury.
But, when the facts are such that all reasonable men must draw from them the same conclusion when there is no room for two reasonable opinions about it then it becomes a question of law for the court.
If any apparently capable person, and one apparently in the possession of his faculties, is seen walking on a railroad track, the servants of the company running the train having given such signals, as are required, have a right to act on the presumption, that such person will step aside in time to remove himself from danger.
If those running a railroad train discover a trespasser in imminent danger on the track, they must use all reasonable exertions to avoid inflicting injury; otherwise, the company will he responsible.
But, if they omit no duty after becoming aware of his danger, the railroad company will not be responsible for such injury.
E. W. Wilson for plaintiff in error:
I. On a motion to strike out all the evidence, the court should
consider the evidence which is asked to be excluded, with all favor, and draw therefrom all the inferences it would be entitled to, if the party making the motion to exclude had demurred to the evidence. 30W. Va. 228.
II. A motion by defendant to exclude the plaintiff's evidence,
upon the ground that it is not sufficient to warrant a verdict in his favor, will not be granted, if there be any evidence, which tends, in any degree, however slight, to prove the plaintiff's case. If it tend, to prove the plaintiff''s case in any degree whatever, the case can not be withdrawn from the jury. The motion can never prevail or be sustained merely because the court may think the weight of evidence is against the plaintiff. -35 W. Va. 389; 36 W. Va. (14 8. E. Rep. 465). 139 U. S. 551 (L. Ed. 35, 276).
III. The fact that pedestrains are accustomed to travel on a railroad at a particular place, makes it the duty of such railway company to exercise greater caution and, prudence in the operation of its road at that place. 30 W. Va. 228.
IV. Although plaintiff's intestate was guilty of negligence in using defendant's railroad track as a foot-path for his own convenience, elsewhere than at a lawful crossing, and, received the fatal injuries complained of, while so doing, yet if said injuries could, and would, have been avoided but for the gross, or wanton, negligence of defendant, then the defendant is, nevertheless, liable. 34 W. Va. 514, 517, 519; 35 W. Va. 117; Patt. R'y Acc. Law, 51 et seep V. Although 'plaintiff s intestate may have been guilty of negli-
gence, and although that negligence may have contributed to the fatal injuries complained of, yet, if after hazing notice of the dangerous exposure of deceased, the defendant did not exercise ordinary care and diligence to prevent the injury, but for which the injury 'would not hare occurred, the defendant is liable. 10M. & W. 646; 31 Gratt. 812; 78 Va. 664; 80 Va, 346; 82 Va. 335; 28 W. Va. 732; 35 W~. Va. 389; Patt. R'y Acc. Law, 51 et seq; 65 Mo. 22; 50 Mo. 461. 60 Mo. 475; 36 Md. 366; 33 Md. 542; 46 K T. Sup'r (14 J. & S.) 473; 65 Texas, 443; 39 Md. 574; 67 Ala. 533; la. 688; 131 U. S. 551 (L. Ed. 35, 270); Grand Trunk R. Co. v. Ives, decided Apl. 4, 1892; S. C. II. S. See Advance Sheet No. 6, p. 232. L. Ed. May, 1892; 2 Woods R'y Law, § 230 and notes. Beach on Contrib. Neg., §§ 50, 54, 187.
VI. Although plaintiff's intestate may have been guilty of negligence in using defendant's railway tracks as a foot-path for his own convenience elsewhere than at a lawful crossing, and received the fatal injuries complained of while so doing, yet, if the defendant had notice of the dangerous exposure of deceased, and, after having such notice, the defendant did not exercise ordinary care and diligence to prevent the injury, then the defendant is liable. 28W. Va. 732; 35 W. Va. 389; Patt. R'y Acc. Law, 51 et seq.
VII. Though the plaintiff's intestate may have been guilty of negligence in using defendant's railway track as a footbath for his own convenience, elsewhere than at a lawful crossing, and received the fatal injuries complained, of while so doing; yet, if the defendant had notice of the dangerous exposure of deceased, and he was then and there apparently insensible to the danger from, the approaching locomotive, and the defendant, after having such notice, failed to use ordinary care and diligence to avoid the injury, and but for such failure upon the part of defendant to use such ordinary care and diligence to avoid such injury, such injury would not have occurred, then the defendant is liable. -28 W. Va, 732; 14 S. E. Rep. 465; 39 Md. 574; 67 Ala. 533.
VIII. A railway company is bound to keep a reasonable lookout for trespassers upon its tracks, and is bound to exercise such care as the circumstances require to prevent injury to them. 36W. Va. (14 S. E. Rep. 465); 36 Md. 366.
IX. A railway company is bound to keep a reasonable lookout for trespassers upon its track, and is bound to use ordinary care and diligence to avoid injury to them. 36 W. Va. (14 S. E. Rep. 465).
X. The fact, that pedestrians are accustomed to travel on a rail-
road at a particular place, makes it the duty of the railway company owning and using such railway to exercise greater caution and prudence in the operation of its road at that place, and to that end, to keep a reasonable lookout for pedestrians on its railway track at such place, and to use ordinary care and diligence to avoid injuring them,. 30 W. Va. 228; 36 W. Va. (14 S. E. Rep. 465); Beach Cont. Neg. § 187, note.
XI. "Negligence and ordinary care" are correlative terms. Ordinary care depends on the circumstances of the particular case and is such care, as a person of ordinary prudence would under the circumstances have exercised. 18 W. Va. 579; 27 W. Va. 285.
XII. Gross negligence is a relative term. It is to be understood as meaning a greater want of care them is implied by the term "ordinary negligence," but after all it means the absence of the care that was necessary under the circumstances. 1 Otto 489 (L. Ed. 23, 374).
XIII. A willful injury is actionable; and so is an injury that could be avoided by the exercise of ordinary care. 10 M. & W. 546 followed by the Supreme Court of the U. S. and nearly every court of last resort in the United States, and by West Virginia in Downey v. R'y Co., 28 W. Va. 732; Acc. Law, p. 51, etc.
Simms & Enslow and j. E. Chilton for defendant in error cited 29 W. Va. 98; 34 W. Va. 514; 49 Ark. 257;. 12 Am. and Eng. R, R, Cases 79; 142 Mass. 296; 101 Pa,. St. 258; 8 Am. and Eng. R. R, Cases 544; 43 X. Y. 527; 31 Gratt. 812; 68 la. 602; 87 Pa. St. 405; 62 Md. 479; 30 Gratt. 602; 71 111. 500; 22 Fed. Rep. 609; 100 Mass. 208; 78 Ga. 694; 43 Minn. 503; 67 Mich. 87; 86 Ala. 484; 88 Ala. 472; Beach Cont, Xegl. (2nd Ed. §§ 202, 203; 83 Va. 553; Wood R'y Law, § 1267; 2 Ror. 1027; 25W.Va, 692; 33 W. Va. 717; 14 S. E. Rep. 13.
1. This is an action of trespass on the case, brought in the Circuit Court of Kanawha county in February, 1892, by Maggie Raines, administratrix, against the Chesapeake & Ohio Railway Company for negligently causing the death of her husband and intestate, John B. Raines, which suit resulted in a judgment for defendant, from which she has obtained this writ of error.
The declaration contains two counts, both good; and the demurrer of defendant was therefore properly overruled. The issue was joined on the plea of not guilty. A jury was impanelled and sworn, and having heard the evidcnce of plaintiff in full the court on motion of defendant struck out plaintiff's evidence; and the jury by direction of the court returned a verdict for defendant. The plaintiff excepted to the ruling of the court excluding her evidence and moved the court to set aside the verdict and grant her a new trial; but the court overruled the motion and gave judgment and certified the evidence, as required by our present statute, Code 1891, p. 834, c. 131. s. 9.
Seven witnesses were examined on behalf of plaintiff, none for defendant, and the facts are, in substance, as follows:
The town of Montgomery, where the accident happened, contains from one thousand five hundred to two thousand people; is about one mile long on each side of defendant's railway, where the company has a station, a yard for storing cars and five tracks running from the station west to the lower end of the town, with spaces between wide enough to put a footman out of danger, and a county road running along near by on either side the one on the south side at a distance of about one hundred and fifty yards. The one on the north side of the tracks is quite close, and is the main street of the town, being about fifty feet from the track, where Raines was killed. The track is straight there, and the footman on it could be seen for a long distance by the train going east. No houses were near the track where Raines was killed. Adjoining the town above and below are the coal valley, and coal mines; and for some fifteen years or more footmen have been accustomed to use the track and travel along it without objection, it being often thus used in dry weather as well as when it is muddy.
On September 25, 1891, about five o'clock in the evening, No. 2, the east-bound passenger mail train, with four or five cars being on schedule time and running at its...
To continue reading
Request your trial