Stike v. Va.n Ry. Co..

Decision Date01 May 1934
Docket Number(No. 7851)
Citation114 W.Va. 832
CourtWest Virginia Supreme Court
PartiesOkley Stike v. Virginian Railway Company et al.

1. Railroads

When, with the knowledge and express consent of the railroad company, special equipment is maintained upon its right of way to facilitate crossing a railroad at a place not a public crossing, and the equipment induces the public in considerable numbers to use the place as a crossing, such equipment may be taken as implying an invitation to the public to make such use.

2. Railroads

A railway company's invitation to the public to cross the railroad at a place not a public crossing charges the company with the same degree of care as the law imposes at a public crossing.

3. Railroads

Whether or not a child between eight and nine years old exercises care for his own safety commensurate with his age and capacity is ordinarily a question for the jury.

4. New Trial

After-discovered evidence which should not produce a different verdict upon another trial is not ground for reversal.

Error to Circuit Court, Mercer County.

Action by Okley Stike against the Virginian Railway Company and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

John R. Pendleton, for plaintiffs in error.

Walter G. Burton and Sanders & Crockett, W. W. Rogers and Ajax T. Smith, for defendants in error.

Hatcher, Judge:

The plaintiff, Okley Stike, aged eight years and five months, was struck and seriously injured by a passenger train of the defendant railway company. From a judgment in his favor, the defendants prosecute error.

The accident occurred on a sharp curve in a cut upon a steep hillside near the town of Matoaka. The railroad is double-track at that place. There is a flight of steps down the bank of the cut and a platform extending from the bottom step to the very edge of the railroad ties. Plaintiff had started to cross the tracks to deliver some milk for his father in Matoaka, a customary service. He had come onto the railroad by way of the steps and the platform. When struck, he was standing on the end of a tie of the track next to the platform, watching a freight train pass on the other track.

A number of years ago a coal company operated a store below the railroad. Some of its employees lived on the hill above. The steps and the platform were constructed (in 1907) by the coal company for the use of those employees in crossing the railroad to the store. Part of the steps and all of the platform are on defendant's right of way, and were maintained by the coal company (until recent years) under an agreement with the defendant. The terms of the agreement are not in evidence, but it is described by a witness as "a lease or encroachment contract covering the encroachment on the right of way.'' The defendant itself arranged no facilities, in connection with the steps and the platform, for crossing the tracks. The coal company no longer operates; but the steps and the platform remain intact. The crossing at the steps is the most convenient walkway to Matoaka for the families residing on the hill. For which reason the crossing is still used habitually by those families comprising some three hundred people.

The passenger train which struck plaintiff was running about twenty-five miles an hour. The engineer knew personally that little children were accustomed to cross the railroad at the steps. He testified that he was looking out for them at the very time of the accident; that the curvature of the tracks limited his view; that he did not see plaintiff until about thirty feet distant and then he applied the emergency brakes without avail. The fireman testified that he was also looking ahead but did not see plaintiff at all.

The train whistle was blown several times within a distance of 2, 000 feet of the steps, but was not blown within 575 feet of that place. There is conflict in the evidence as to whether or not the engine bell was ringing. If it was, plaintiff's interest in the passing freight train prevented him from noticing the bell. There is also conflict in the evidence as to the distance in which the train could have been stopped. The estimates of trainmen range from 140 to 375 feet. By actual tests it was shown that the engineer could see a boy standing where plaintiff was struck, a distance of 105 feet if he had his head and shoulders out of the engine cab, and only 37 feet if he were sitting in the customary position inside the cab. The evidence is conflicting as to the exact distance from the steps at which the fireman should have first observed the plaintiff, as the fireman's view was obstructed somewhat by the freight train. The distance claimed by plaintiff is 191 feet. That claim is seemingly well founded since one of defendant's own witnesses (after making observations from the engine) testified that commencing 190 feet from the steps, the plaintiff was within the fireman's vision for a space of some 30 feet along the track. The jury was...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT