Ray v. Chesapeake & O. Ry. Co

• Decision Date: 07 March 1905
• Citation: 50 S.E. 413,57 W.Va. 333
• Court: West Virginia Supreme Court
• Parties: RAY. v. CHESAPEAKE & O. RY. CO.

57 W.Va. 333

50 S.E. 413

RAY.

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of West Virginia.

March 7, 1905.

RAILROADS—INJURY TO PERSON ON TRACK— DECLARATION—DEMURRER — VERDICT—TRIAL —READING LAW TO JURY—PUBLIC STREET.

1. A railroad company is liable for damages for injury to any person on its tracks, whether at a public crossing or elsewhere, arising from careless and negligent running of the train.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1254-1256.]

2. If one count of a declaration is good, another bad, though there was a demurrer to the declaration and each count, a general verdict will be good, and reversal will not be made on account of the bad count.

3. As to reading law in argument to a jury, the syllabus in Gregory v. Ohio River R. Co., 16 S. E. 819, 37 W. Va. 606, is reaffirmed.

4. A court may and should refuse to allow counsel to read lawbooks, either text-books or reports, in addressing the jury, if objected to.

[Ed. Note.—For cases in point see vol. 46, Cent. Dig. Trial, §§ 290, 291.]

5. Reading reports of decisions giving evidence or facts involved in decided cases, more or less similar in character, if objected to, should not be allowed, and its allowance, over objection, is reversible error.

6. A street in a town, crossing a railroad, dedicated to public use, and used for 25 years by the general public, on which the railroad company has for years itself maintained a crossing for vehicles and foot passengers, and erected a whistling post calling for warning signals, and a warning board at the crossing, having on it the words, "Look out for locomotive. Railroad Crossing, " and sometimes worked for repair by town labor, is a public street within the meaning of Code 1899, c. 54, i 61, though no order of the town council can be produced showing acceptance by the town of such dedication, or the establishment or recognization of the street by the council.

(Syllabus by the Court.)

Error to Circuit Court, Cabell County; E. S. Doolittle, Judge.

Action by A. S. Ray, administrator of Annie S. Ray, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Simms & Enslow, for plaintiff in error.

Williams, Scott & Lovett, for defendant in error.

BRANNON, P. Annie S. Ray, a child of 10 years, was struck and killed by a train of the Chesapeake & Ohio railroad while she was crossing the railroad tracks at a street crossing in the town of Milton, and her administrator brought an action in the circuit court of Cabell county against the railroad company, and recovered a verdict and Judgment for $2,900 damages.

The company assigns it as error that the demurrer to the declaration was not sustained. The only question which is here worth considering, or is relied upon by counsel, arises on two of the four counts. It is urged that those two counts are bad because they show no duty on the part of the company to Annie Ray, since they do not state whether she was a passenger on the train, an employe, a licensee, or a trespasser. Though the first count says that the railroad crosses a public street called "Smith Street, " strangely enough it does not show what the street has to do with the case. It does not say that the child was struck while passing along the street. It simply avers that the defendant so carelessly and negligently managed the train that it struck the child. Though it does not say that the child was struck while on the street and crossing the track, as was the case, yet if she was struck anywhere, on the street or elsewhere, by reason of negligent running of the train, the liability exists. If a train kills a trespasser on its tracks by negligence, it is liable. The count avers that the train was pursuing the track, and struck the child;and it is fair to say that the child was on the track, or very near it, and was thus struck. The case of B. & O. R. Co. v. Whit-tington, 29 Grat 805, 26 Am. Rep. 384, does hold that the declaration must state whether the person injured was a passenger, employe, licensee, or what; but we think that that case forgets the rule that some duty Is owing by a railroad company to any one, even a trespasser, on its track anywhere, whether at a crossing or not At any rate, we cannot follow that case in disregard of Bias v. Railway, 46 W. Va. 349, 33 S. E. 240. But in the B. & O. Case the count was not as good as in this case, since it simply alleged that the defendant conducted itself so negligently, carelessly, and unskillfully as to inflict on Whittington severe bodily injury, not saying how, whereas the counts in this declaration say that the train was by negligence driven against the child on the track. The same Is to be said of the second count It mentions no street, but simply alleges that the defendant negligently and carelessly drove its train against the child and killed her. If even I am wrong in saying that counts 1 and 2 are bad, as the third and fourth counts are good, the verdict being general, not on any particular count the bad counts cannot reverse, as section 13, c. 131, Code 1899, says that where there are several counts, one of which is faulty, If entire damages are given, the verdict is good. As you cannot say on which count the jury found, the common law said that no judgment could be given; but the statute changes the rule. Cooke v. Thornton, 6 Rand, 11; 2 Barton, L. Prac. 695.

The second assignment of error is that the court allowed oral evidence to prove that Smith street had been used by the public as a public street, the claim of the plaintiff, under two counts of the declaration, being that the child was passing along that street and crossing the railroad, and was there struck by the train, and that the defendant did not blow the whistle or ting the bell for alarm, as required by statute at public streets. The defendant contends that to come under this statute, the records of the town council must be adduced to show it to be a public street. For this contention we are cited to Childrey v. Huntington, 34 W. Va. 466, 12 S. E. 536, 11 L. R. A. 313; Boyd v. Woolwine, 40 W. Va. 283, 21 S. E. 1020; Talbott v. King, 32 W. Va. 6, 9 S. E. 48; Ball v. Cox, 29 W. Va. 407,-1 S. E. 673. Those cases do not apply to the case in hand. They are cases where the question was whether a city was liable for defect in the street, or a contest between owners of land as to the existence of a private right of way, or a contest between the public and the owner as to the right of a way over his land. Surely section 61, c. 54, Code 1899, requiring a bell to be rung or a steam whistle to be whistled "where the railroad crosses any public street or highway" applies to any street or road actually used by the public generally as and for a street—used so generally, so long, as to be fairly denominated and considered a highway, no matter that no record of its adoption by the county court or council can be produced. According to the contention of counsel for the defendant, this Smith street in a town of 700 people, dedicated by the owner 25 years before this lamentable accident, the dedication accepted by the public by constant general use for that time, one of two main streets in the town crossing the railroad and connecting the two sections of the town on the north and south sides of the railroad, in the heart of the town, worked by the town authorities, recognized by the railroad company itself as a public street by making and keeping up a crossing on this street over Its tracks, and erecting a board at this crossing having on it the warning, "Look out for the locomotive. Railroad Crossing, " and a whistling post to tell engineers where to give alarm, is not such a street as to require the bell or whistle alarm, simply because no order of council establishing or recognizing Smith street can be found. Surely that would lop off much of the usefulness of the statute, and partially defeat the design of the Legislature. In Hast v. Railroad Co., 52 W. Va. 396, 44 S. E. 155, we hold that dedication, accepted by public and generally used, makes a public highway between dedicator and the public, though the, dedication is not accepted by the county court, though not for the purpose of charging the county with the maintenance of the road. Genera] user will, for many purposes, make a highway. Many cases are cited in 3 Elliott on Railroads, § 1154, for the proposition that if the place has been used as a passageway for a long time, and this use is with the knowledge and permission of the railroad company, it is its duty to treat it as a highway. From that late great work, Thompson, Com. on Negligence, § 1566, I quote: "Under a statute of Georgia, the omission to blow the whistle and check the speed of the train on approaching a crossing over a road which, though used to a greater or less extent by the public, has never been legally established as a road, is not negligence per se, though it is plain that it may be evidence of negligence to go to a jury, under principles already considered. The term 'any other road, ' in such a statute, has been construed as referring to public highways only, and not to private crossings. A road which is openly and notoriously used as a highway, and which...