Sommerville v. Pennsylvania R. Co.

• Decision Date: 27 June 1967
• Docket Number: No. 12636,12636
• Citation: 155 S.E.2d 865,151 W.Va. 709
• Parties: Henry R. SOMMERVILLE v. The PENNSYLVANIA RAILROAD CO., a Corporation.
• Court: West Virginia Supreme Court

Page 865

155 S.E.2d 865

151 W.Va. 709

Henry R. SOMMERVILLE v. The PENNSYLVANIA RAILROAD CO., a Corporation.

No. 12636.

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1967.

Decided June 27, 1967.

Syllabus by the Court

1. A railroad, being a common carrier, is charged with a duty to maintain in a safe condition the tracks, equipment and switches over which it operates and such duty exists in the same degree even though it is operating its trains over tracks owned by and situate on property of others.

2. Although a sidetrack agreement entered into between a railroad and an industry which it serves, whereby the industry agrees to maintain the tracks and switches situate on its property, may be binding as to the parties to such agreement, it does not relieve the railroad, as to the general public, of its primary obligation of the maintenance of such tracks.

3. A railroad cannot exempt itself from liability for losses resulting from its negligence or misconduct.

4. When the material facts are undisputed and reasonable men can draw only one conclusion from them, the question of negligence is a question of law for the court.

5. Where the evidence given on behalf of the defendant is clearly insufficient to support a verdict for him so that such verdict, if returned by a jury, must be set aside, and the evidence of the plaintiff is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff.

Goodwin, Mead & Goodwin, Russell B. Goodwin, Wheeling, for appellant.

Martin S. Bogarad, Weirton, for appellee.

CAPLAN, Judge.

This case is before the Court on appeal from a final judgment of the Circuit Court of Hancock County entered on a jury verdict as to damages after the court had directed a verdict on liability for the plaintiff.

The defendant, The Pennsylvania Railroad Company, a corporation sometimes herein referred to as the 'Railroad', filed its answer to the complaint and moved the court for leave to make Weirton Steel Company, a corporation, a third-party defendant to this action. The third-party complaint was filed and notice of its motion was properly served on the plaintiff. After the Weirton Steel Company filed its answer to the third-party complaint, a hearing was held and the motion to make Weirton a third-party defendant was granted.

The National Steel Corporation, of which Weirton is a division, instituted an action against The Pennsylvania Railroad Company for damages to its building. At a pretrial conference the court consolidated these cases but, for the purpose of a trial by jury, the claim of Sommerville against The Pennsylvania Railroad Company was ordered severed and a trial of that case was held, resulting in this appeal.

In his complaint the plaintiff, Henry R. Sommerville, alleges that on October 1, 1959 at 2:20 A.M. he was an employee of the Weirton Steel Company and was at that time engaged in his employment in a building on Weirton's property; that while so employed the defendant railroad, through its servants or employees while operating a train through the premises of Weirton, negligently, carelessly and unlawfully so operated the train that it collided with the building in which the plaintiff was working; and that said collision caused the destruction of the building and severe injury to the plaintiff.

Answering the complaint, the defendant railroad denied that it negligently, carelessly and unlawfully operated the train which collided with the building in which the plaintiff was then working. It denied that the plaintiff was injured as a direct and proximate result of any negligent careless and unlawful conduct of said defendant. The answer of the Railroad then affirmatively alleged that the collision complained of was proximately caused by the employees of Weirton Steel Company in that they failed to properly inspect and maintain the said railroad tracks, equipment and switch belonging to said company. The basis for the latter defense is found in the third-party complaint wherein the defendant railroad relies on a sidetrack agreement entered into with Weirton Steel Company for the operation of trains by the Railroad over tracks located on the Steel Company's premises. Particular reliance is placed on paragraph 8 of said agreement part of which reads as follows:

'The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Industry, its employees, or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about said side track; and if any claim or liability, other than from fire, caused by locomotives as aforesaid shall arise from the joint or concurring negligence of both parties hereto it shall be borne by them equally.'

The foregoing is predicated on that provision of the agreement which provides that Weirton Steel shall maintain the portion of the side-tracks situate on the property of said company.

The following factual situation gave rise to this action. On October 1, 1959 at approximately 2 A.M. a train of The Pennsylvania Railroad Company, operated by its employees, entered the premises of Weirton and proceeded along track #3 for the purpose of picking up an empty box car at the dead end of that track. In performing this operation, the train backed down track #3, travelling over a switch which permitted a spur line, track #2, to join said track. After effectively coupling the empty box car, the defendant's train proceeded in a forward direction to move the cars along track #3. It appears from the evidence that the locomotive and all of the cars, except the last car in line, successfully passed over the aforementioned switch. The last car, due to what undisputedly has been acknowledged to have been a defective switch, failed to traverse that point. Instead, as indicated by the testimony, the front set of wheels of said last car followed the train but the rear set of wheels 'picked the switch' and started down the spur, track #2. As a result the car collided with the building which was situate between tracks #2 and #3 and in which the plaintiff was then working.

It is the position of the defendant railroad that in accordance with a sidetrack agreement between the parties entered into in 1927, and in effect since that time, Weirton constructed, owned and maintained all of the tracks on its property; that by reason of said agreement it, Pennsylvania, had no obligation or duty of maintenance of any of the tracks, equipment or switches on Weirton's property; that negligence in failing to properly inspect and maintain the switch in question cannot be chargeable to the defendant; and that in any event, by reason of said track agreement, the aforesaid duties and obligations are Weirton's not the defendant's. It appears from the record that Weirton did construct and has maintained the tracks and switches on its property. The defendant also relies on the doctrine of sudden emergency, asserting that when this accident occurred its employees were confronted with a situation constituting a sudden emergency and that they did everything possible to prevent the damage and injury to the company and plaintiff.

At the completion of all of the evidence, the trial court, being of the opinion that the sidetrack agreement did not relieve Pennsylvania of its obligation to properly maintain tracks over which it was operating, as to a third person, and that such duties were nondelegable, instructed the jury to return a verdict in favor of the plaintiff as to liability. The case was then submitted to the jury for its verdict as to damages and the jury returned a verdict in the sum of $9,500.00 in favor of the plaintiff. After the defendant's motion to set aside the verdict was denied, this appeal was prosecuted.

A careful examination of the pleadings filed in this case and of the evidence adduced during the trial reveals clearly that the defense to the complaint is based principally on the sidetrack agreement between Pennsylvania Railroad Company and Weirton Steel. The Railroad contends that, in view of its agreement with Weirton, any negligence existing by reason of the failure to properly inspect and maintain the tracks and switches is chargeable, not to it, but to Weirton. The defendant railroad readily acknowledges, and it is undisputed in the record, that the injury suffered by the plaintiff was the proximate result of the admittedly defective switch.

This position is evidenced by the language in its answer to the complaint, wherein Pennsylvania said: 'Defendant alleges that said collision mentioned in the Complaint was proximately caused by employees of the Weirton Steel Company, and by their failure to properly inspect and maintain the said railroad tracks, equipment and switch belonging to the Weirton Steel Company, a corporation.'

In substance the Railroad argues that although the defective switch was the proximate cause of the plaintiff's injuries, the failure to discover such defect was chargeable to Weirton. It reasons that Weirton had agreed to inspect and maintain the tracks and switches on its premises and its failure to fulfill its obligations relieved the Railroad of all responsibility.

The sidetrack agreement referred to above was entered into by the defendant railroad and Weirton. As between those parties it appears to be a valid contract, although that is a matter not to be determined in this proceeding. The plaintiff, however, was not a party to that agreement, so its provisions are not relevant insofar as the subject claim is concerned.

The Pennsylvania Railroad Company, being a common carrier, Code, 1931, 31--2--1, is acting within its franchise as such when it operates its trains on the property of others. Code, 1931, 24--3--1. As a common carrier, a recipient of a franchise from a governmental authority, it is...