S v. Coal

• Decision Date: 05 October 1920
• Docket Number: No. 3907.,3907.
• Citation: 87 W.Va. 106
• Court: West Virginia Supreme Court
• Parties: S, H. Robertson, Exr. etc. v. Coal & Coke Railway Co.

87 W.Va. 106

S, H. Robertson, Exr. etc.

v.Coal & Coke Railway Co.

No. 3907.

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1920.

Decided October 5, 1920.

1. Railroads Pedestrian on Track Commonly Used as Pathway Held Mere Licensee.

One having the ordinary power to discern and appreciate danger, who, in common with others, uses, with the implied knowledge of the operator, part of a railroad track, elsewhere than at a public crossing, as a pathway for his own convenience, is at most a mere licensee, and as such the company owes him no other or higher duty than it owes a trespasser, (p. 110).

2. Same Injuries to Pedestrian Held Not Actionable, Unless He Was Discovered.

An a'dult, not an employee of the company, in the full possession of the faculties necessary to enable him to foresee and perceive the dangers attending his presence upon railroad property, injured while using a railroad track as a footpath for his own convenience, elsewhere than at a public crossing, cannot recover damages therefor from the company, unless it be shown that after he was discovered upon the track by the employees of the company they did not use reasonable care to avoid injuring him. (p. 110).

(Williams, President, absent.) Error to Circuit Court, Kanawha County.

Action bv S. H. Robertson, executor of John B. Grubb, de- ceased, against the Coal & Coke Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Price, Smith, Spilman & Clay, for plaintiff in error.

M. M. Robertson and W. E. R. Byrne, for defendant in error.

Lynch, Judge:

As executor of John R. Grubb, plaintiff brought this action to recover damages for injuries inflicted by defendant upon the testator from which his death ensued a few hours later. A verdict and judgment for $2,700 resulted from a trial of the action, and defendant prosecutes this writ to reverse it.

Defendant owns and operates a railroad from Elkins southward to Charleston, the greater part of the distance being along Elk River. Clendenin, a town of approximately 1, 500 people, is an intermediate station. A freight train composed of an engine, tender and twenty-seven cars bound, from Charleston to Elkins entered upon a side track at Clendenin to permit a Charleston-bound passenger train to use the main track at that point in its passage down Elk River, and while backing out of the siding onto the main track to resume the journey northward after the passenger train had passed, the rear car of the freight train struck Grubb, knocking him down, and. that and other cars of the train ran over his body, severed both legs below the knees and otherwise seriously injured him, thereby causing his death.

Grubb, then aged about 60 years, was in good physical and mental condition for a man of his age, his only physical defect being slight dullness of hearing. When injured, he was walking southward, between the rails of the main, track of defendant's railroad below Clendenin in the same direction as the backward, moving train. What the object of his journey was no evidence shows. The high school building of which he was at that time the janitor'is located above the Clendenin depot, but the location of the small farm owned, or controlled by him the evidence does not disclose, lie lived in Clendenin at the home of his daughter's husband.

Occupants of from 4-0 to 65 dwelling houses in the lower part of Clendenin, and people living at Reamer, a short distance below the town, were in the habit of using defendant's railroad, as deceased was using it when injured, in going to and returning from Clendenin, so frequently, as plaintiff contends and as the evidence tends strongly to show, that defendant must have had notice or knowledge of such user. Among these were children of different ages. going to and returning home from school when in session at Clendenin. The houses so occupied and others devoted to business and other purposes are on each side of and in (dose proximity to the railroad track below the depot, though for the most part they are between the railroad and river. There was then available for use by pedestrians a public road along the same side of the river and a pathway along the outer ends of the crossties of the track; one entirely safe, the other much less dangerous than walking between the rails of the track, though the path was upon the top of an eight or ten-foot unguarded fill.

The negligent omission of duty averred in the declaration as the ground for damages for the injury, was the failure of defendant's agents to ring a bell or sound a whistle or require one of its employees to stand upon the rear car of the train, when backing onto the main track, until it had completely effected that operation; this upon the theory that by the first method deceased would, have been apprised of the train movement, and by the second the employees would, have observed the peril of his position and. taken steps to avoid the injury. The rear flagman of the train, did ride on the end car from the time it began to withdraw from the siding until it had passed the public crossing at that point and reached the freight depot, but not until it had completely resumed its position on the main track. He dismounted when, it was opposite the depot, for the purpose, it appears, of assisting in loading one of the cars making up the freight train. However, he testifies that after dismounting from the train, he looked down the track in the direction in which it was moving and discovered no one on it. These are the salient facts clearly established by the proof. The only pertinent question of importance is, whether there was, under the circumstances detailed, such duty as plaintiff contends and such breach thereof as imposes liability upon defendant...