Shirley v. Norfolk & W. Ry. Co.
| Decision Date | 12 February 1929 |
| Docket Number | 6364. |
| Parties | SHIRLEY v. NORFOLK & W. RY. CO. et al. |
| Court | West Virginia Supreme Court |
Submitted February 5, 1929
As Modified on Denial of Rehearing April 23, 1929.
Syllabus by the Court.
The duty imposed on a railroad engineman to sound the whistle or ring the bell when approaching a public crossing, or a crossing maintained by the railroad for use of, and used by the public, is owing only to those using the track in passing over the crossing, and not to trespassers on or near the track elsewhere; and in a suit by a trespasser using the right of way for convenience or pleasure, for injuries received near a crossing, it is reversible error to show that the crossing warnings were not given; there being no unusual circumstances which would require them to be given.
Error to Circuit Court, McDowell County.
Action by William David Shirley, an infant, etc., against the Norfolk & Western Railway Company and others. Judgment for plaintiff, and defendants bring error. Reversed, and a new trial awarded.
Harman & Howard, of Welch, for plaintiffs in error.
F. M Rivinus, of Philadelphia, Pa., Strother, Sale, Curd & Tucker of Welch, and Goodykoontz & Slaven, of Williamson, for defendant in error.
This writ challenges a verdict for $20,000 and judgment entered thereon July 7, 1928. The parties will be herein designated as they were in the trial court as plaintiff and defendants and not as plaintiffs in error and defendant in error. Plaintiff, a boy 5 years and 25 days old at the time of the accident, had his hand mashed by a railroad car or cars operated over a spur, or service track, necessitating amputation at the wrist. The gravamen of negligence charged in the declaration is that defendant permitted a sand pile to remain near its spur track at which plaintiff was playing, and that defendants in shifting the cars by the sand pile negligently and carelessly failed to keep a lookout for him in dangerous proximity to its track, and did not warn him of the approach of the cars, by reason whereof plaintiff was run over and against by said cars and injured. A photostatic copy of a map made from careful survey of the spur track and its immediate surroundings (scale 50 feet to the inch)1 will visualize the controversy:
(Image Omitted) The spur track is approximately 1,500 feet long, and extends from the main tracks in a westerly course to the tipple of a coal company. At the sand pile and crossing, and between them and the store on the east, the track "swagged"; that is, the grade was lower than at the tipple on the west and the store on the east. On the day of the accident, 18 loaded coal cars were standing in this "swag" just east of the sand pile and west of the store. The sand pile proper was on the coal company's land where it unloaded a car of sand each month for use in its mining operations, but it appeared from the evidence of plaintiff's father that on the day of the accident the sand was scattered and extended onto the right of way of the railroad and up to the south rail. A shifter entered the spur track for the purpose of first taking out the loaded cars and then putting in empties. The conductor walked along the loaded cars on the north side to get the billing and check the cars and be in position to signal the engine crew, none of which duties could have been performed had he been able to travel on the south side. He states that he then stationed himself opposite the sand pile and in full view thereof, and, after the brakeman had traveled over the cars to release the brakes and attend to the coupling and air hose (in which the conductor assisted), the cars were pulled east toward the store and away from the sand pile in order to back toward the tipple so that a swing could be given to the loads to haul them out to the main line. The movement necessary was first forward east, then back to westward toward the tipple, and then eastward again with a "swing" to get the cars out of the "swag" (depression in grade) onto the main line. The conductor and brakeman both say that when this movement began, and when the first car passed the sand pile on the westward movement, no person whatever was on the sand pile. The cars were backed toward the tipple and stopped for three to five minutes in order to give the brakeman time to walk back past the sand pile to the engine where his duties called him to do switching. At some time in the movement of the loads the child's hand was crushed, for the father and perhaps others discovered after the accident blood and small bits of flesh on the south rail at the sand pile. Witness Penman, superintendent of the coal company, who was standing from 50 to 75 feet from the sand pile in full view of it, also says there was no person on the sand pile when the first car passed it. At what time in the movement of the cars, whether forward or backward, or what the child was doing, or how it got there, is not by any means clear; for no witness saw the accident. The child did not testify being of very tender years, nor did its mother, who first discovered it was injured.
The child lived with its parents in a house, the back porch of which was 12 or 15 feet south from the sand pile. The theory of plaintiff is that the child was playing on the sand pile with another boy when the cars first passed on their swing westward toward the tipple, and that the conductor and brakeman did not use reasonable precaution to discover the child in dangerous proximity to the track. The argument is that defendants' witnesses, the conductor,...
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