Ross v. Kanawha

• Decision Date: 13 April 1915
• Citation: 76 W.Va. 197
• Court: West Virginia Supreme Court
• Parties: Ross v. Kanawha & Michigan Railway Company.

76 W.Va. 197

Ross

v.Kanawha & Michigan Railway Company.

Supreme Court of Appeals of West Virginia.

Submitted March 16, 1915.

Decided April 13, 1915.

1. Bailroads License to Cross Under Cars Gratuitous Agreement.

Where a railway company, solely at the instance and for the convenience of persons having no connection with its business, gratuitously agrees to separate cars which it stores on its side tracks, so that such persons may cross the tracks at a particular place, a license or permission to cross over or under the cars when not so separated is not thereby given. (p. 199).

2. Same "Trespasser" Person Crossing Under Cars.

One who without permission crawls under ears of a railway company, left standing on its tracks at a place not a public crossing, is a mere trespasser. (p. 200).

3. Negligence "Licensee" Attendant Risks.

A person exercising a privilege which exists solely for his own convenience or benefit is a bare licensee subject to all attendant risks. (p. 201).

4. Bailroads Duty to Treat Place as Public Crossing Invitation or Right.

In order to impose on a railway company the duty to treat a place as a public crossing, those who use it as a crossing must do so under legal right or at the invitation of the company. Mere license or permission to cross the tracks of a railway company is not equivalent to an invitation. (p. 202).

(Lynch, Judge, absent.)

Error to Circuit Court, Fayette County.

Action by Chloe Ross, who sues, etc., against the Kanawha & Michigan Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed, and new trial awarded.

W. N. King and Leroy Allebach, for plaintiff in error.

Dillon & Nuckolls, for defendant in error.

Robinson, President:

In this case the plaintiff is a little girl, twelve years old at the time of her injury, suing for the recovery of damages from a railway company because of the loss of her left leg. From a judgment in her favor the railway company brings error.

Plaintiff lived in a mining village which was made up of the plant, store, dwellings, and club house of the coal company there operating. She was the daughter of an employee of the coal company, living in one of the dwellings. The coal operation, store, and dwellings were on one side of the railway, the club house on the other. The latter, living quarters for the coal company officials and others, was almost directly opposite the store. Through the village the railway company maintained five tracks, a main line with two tracks on each side of the same. The side tracks were largely used for storing cars needed in the transportation of coal from the several mines in the vicinity. In going to the club house from the main part of the village, it was of course more convenient to go directly across these tracks than to use a public crossing located several hundred yards above. On the day plaintiff was injured, she had been to the club house to deliver milk which her parents sold there. On her way from her home to the club house she found cars standing on the side tracks, with no openings between them, as was usually the case, and crawled under them, or between them at the couplings. She had begun to return the same way when the long string of ears standing on the track nearest the club house, under couplings of which she was crawling, was started by an engine attached thereto at a distance so far she could not have seen it. Just as the cars were about to be moved, a trainman who was standing on the other side from that whence she came, noticed her and told her to get back. It was too late. Before, she could return, the wheels crushed her leg so that it was necessary to amputate the same.

Out of convenience it was usual for persons to travel directly across the tracks between the store and the club house, going over or under the cars whenever the side tracks were blocked by them. The little girl had frequently gone over there in her duty of delivering milk. The general superintendent of the railway company had gratuitously agreed with the superintendent of the coal company to keep the way open for the convenience of the coal company and its employees by separating the cars when they were left on the side tracks. But this agreement was neglected and had not been well fulfilled.

(1) The theory of plaintiff's counsel, embodied in the main instruction given to the jury on behalf of plaintiff, is that by reason of the agreement of the railway company to separate the cars, plaintiff was not a trespasser but a licensee, and that therefore defendant owed her the duty of reasonable care. Upon a true view of the facts proved this instruction was inapplicable, misleading, and erroneous. It as much as told the jury that an agreement to separate the cars gave plaintiff license to crawl under the cars if they were not separated. The agreement gave plaintiff no such license.

Plaintiff proved only that by consent of the railway company she had permission to cross when the cars were separated. No other license was granted to any one. There is not a word in the case implying that the railway company consented with the coal company that agents and servants of the latter might climb over or crawl under the cars in case the railway company failed to separate them. Indeed it is inconceivable that any official connected with the railway company would consent to such a thing. Clearly the failure of the railway company to separate the cars did not give any one a more extended license than that which was actually granted. That license, as we have said, was only to cross the tracks between separated ears.

It must be noticed that the duty of a railway company at a public crossing is not involved in this ease. If that were so, the case might be different. It is not even contended that the crossing was a public one. The evidence is too clear that it was not. The railway company had refused to establish a public crossing at the place. Thereafter, at the insistence of the coal company, wholly for the benefit and convenience of the coal company and its employees, the railway company consented merely to separate the cars when placed on the side tracks, so that persons could pass between them. This consent in no way related to any benefit or advantage to the railway company. It had no station at the place. In any view the evidence establishes nothing else than a mere permission by the railway company that persons might, without invitation on its part, cross the side tracks from...