Stuck v. Kanawha & M. Ry. Co

• Decision Date: 01 June 1915
• Court: West Virginia Supreme Court
• Parties: STUCK . v. KANAWHA & M. RY. CO.

86 S.E. 13

76 W.Va. 453

STUCK .

v.KANAWHA & M. RY. CO.

Supreme Court of Appeals of West Virginia.

June 1, 1915.

Rehearing Denied Sept. 7, 1915.

(Syllabus by the Court.)

For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]

Error to Circuit Court, Kanawha County.

Action by Edward Stuck, an infant, who sues, etc., against the Kanawha & Michigan Railway Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial awarded.

Cato & Bledsoe and A. M. Belcher, all of Charleston, for plaintiff in error.

W. N. King and Leroy Allebach, both of Charleston, and Norton Monsarat, for defendant in error.

ROBINSON, P. The action is on the part of an infant to recover from a railway company damages for personal injury. The trial court excluded plaintiff's evidence, directed a verdict for defendant, and entered judgment of nil capiat thereon.

The injury occurred while plaintiff was walking along a path between the main line and a siding, within the corporate limits of the city of Charleston. At the time, plaintiff was nine years and eight months old. He and a number of other boys had been playing marbles on a public road near the railroad. From the game of marbles he had started to go to his home on Bigley Avenue, which is crossed by the railroad. His brother, two years older than himself, accompanied him. Instead of going by way of the Crescent Road, which parallels the railroad and is a little farther, they went upon the path between the siding and the main line of the railroad. This path was much used by the public. Plaintiff was walking southward along the path when a south bound freight train, running at the rate of thirty-five or forty miles an hour, came up behind him. He was oblivious of the coming of the train when it overtook him. A string of box cars standing on the siding left a clear space of only four feet between him and the swiftly moving train. The engine and about three box cars had passed him when his head came in contact with a door of one of the cars, which was loose at the bottom and swung out He was knocked down and run over, his right leg and left arm cut off, and his head injured. No warning from the engine was sounded by bell or whistle, to apprise plaintiff of danger, before he was overtaken. Yet in the train's approach to the point where plaintiff was overtaken the track was straight for thirteen or fourteen hundred feet, affording the engineer view ahead for that distance. When plaintiff was struck his brother was some distance in advance of him and had passed beyond the box cars and stepped over onto the side track. He says he heard the rumbling of the train and looked back to seewhere plaintiff was, just in time to see the latter struck by a box car door. Do these facts, which were uncontradicted before the jury, make out a prima facie case of negligence on the part of defendant entitling plaintiff to recover? We are of opinion that they do.

Whatever may be the rule in other jurisdictions, it is settled law in this State, concerning the operation of trains, that it is the duty of those in charge of them to keep a reasonable lookout for animals and persons trespassing upon the tracks. This does not mean that they are bound to keep a constant watch, but only a reasonable lookout along the track, consistent with the proper performance of their other duties in running the train. And the rule seems to be applicable, as well in the case of adult trespassers in full possession of all their faculties and physical powers, as in case of infants of tender years, disabled persons, and dumb animals. Spicer v. Railway Co., 34 W. Va. 514, 12 S. E. 553, 11 L. R. A. 385; Raines v. Railway Co., 39 W. Va. 50, 19 S. E. 565, 24 L. R. A. 226; Gunn v. Railroad Co., 42 W. Va. 676, 26 S. E. 546, 36 D. R. A. 575; Dempsey v. Railway Co., 69 W. Va. 271, 71 S. E. 284, 34 L. R. A. (N. S.) 682; McGuire v. Railway Co., 70 W. Va. 538, 74 S. E. 859. In view of this duty, imposed by law, it is a reasonable inference to be drawn from the facts that the track was straight for at least thirteen hundred feet between plaintiff and the approaching train, that the engineer or the fireman saw plaintiff, or by the exercise of reasonable diligence could have seen him.

It is certainly true that plaintiff was a trespasser on the railway right of way, but it is accepted law of this jurisdiction that a railway company in the swift running of trains owes duty to seen trespassers. Herein is differentiation from the general rule of duty to trespassers. In Raines v. Railway Co., supra, this court held:

"If those running a railroad train discover a trespasser in imminent danger on the track, they must use all reasonable exertions to avoid inflicting injury; otherwise, the company will be responsible."

And kindred to this is the remark of Judge Dent, in Davidson v. Railway Co., 41 W. Va. 407, 23 S. E. 593:

"All trespassers into dangerous situations are guilty of negligence, yet if, by ordinary care on the part of those knowing the danger, it can be averted, it is their duty to exercise such care in tender consideration of human life."

If plaintiff had been walking on the track instead of so near to the side of it, apparently oblivious of the approach of the train as the evidence shows he was, our cases unquestionably establish that it would have been the duty of the engineer to take reasonable precaution for his safety. Of course what the precaution should be must be judged in each case by its particular circumstances.

"Each ease must depend upon its own facts in determining what shall constitute ordinary care or reasonable prudence in the running of a railroad train." Raines v. Railway Co., supra.

The only distinction in this case from those in this court heretofore dealing with duty of a railway company to seen trespassers is that here plaintiff was not directly on the track. This is a distinction in fact. Is it in principle? Does the duty arise merely from a particular physical position, or from the imminence of danger? In reason, plainly the latter. It is not enough to say that the trespasser was not directly on the track and therefore no duty was due to him. If he is where there is danger to him from the running of the train, the duty is certainly the same. The duty, if flowing at all from the particular circumstances of a case, flows out of the imminence of danger from the train, whether from the pilot of the engine, from the side of the cars, or otherwise. Will the train hurt the trespasser? That is the question which confronts the engineer. The law tells the latter what he must do. Its rules in such case are only the rules of natural reason. They vary with particular circumstances. If a duty to a trespasser on a railway right of way arises in a particular case, it is not that the engine shall not strike him, but that he shall not be hurt by the running of the train. What difference as to result is there in running a train so close to a man that he is injured thereby, and in running it directly on him? True, there may be less imminence of danger from the former than from the latter. But if the danger from the former is reasonably apparent, the duty to protect is the same in either case. Take the case of a man caught in a long, straight, narrow cut, standing as best he can to avoid the train. May the engineer proceed simply because he knows the engine will pass the body of the trespasser? Must the engineer not remember the swinging of cars and the inability of human nerves always to stand such perilous position? Reason in such case will dictate his duty. He must do what he can to prevent that which he knows is fraught with danger. His duty in such case is not simply not to injure, but not to risk the life of the trespasser. Though the trespasser is first at fault, the engineer has the last clear chance to avoid the injury that seems probable from the risk. If the latter does not hearken to the duty which reason dictates and injury comes therefrom, it may be for a court or jury to say how he acted in the premises.

The case which we have surmised is an extreme one, but it illustrates that there is a duty to a trespasser, if discovered in time, not unreasonably to risk his life...