Tawney v. Kirkhart, (No. 9863)

Decision Date21 October 1947
Docket Number(No. 9860),(No. 9863)
Citation130 W.Va. 550
PartiesGladys Tawney, Admx., etc. v. M. C. Kirkhart, et al., Dfts.Below, M. C. Kirkhart, P. E.andGladys Tawney, Admx., etc. v. M. C. Kirkhart, et al., Dfts.Below, The Baltimore and OhioR. R. Co., P. E.
CourtWest Virginia Supreme Court

1. Jury

Upon a showing by one defendant that its defense is materially hostile to that of a co-defendant the defendant making the showing is entitled to the number of peremptory challenges allowed by statute, from a panel increased by that number. Upon motion only and in the absence of such a showing that right does not exist.

2. Negligence

"In the absence of a joint enterprise, the negligence of the driver of a motor vehicle attempting to cross a public railroad crossing cannot be imputed to a passenger in the vehicle." Parsons v. New York Cent. R. Co., 127 W. Va. 619, Pt. 7, Syl., 34 S. E. 2d 334.

3. Evidence

"The testimony of one witness, who denies that a railroad whistle was sounded on a given occasion, is as positive evidence as the testimony of another who affirms the fact, where each has equal opportunity of hearing and the attention of the former because of special circumstances is equally drawn with that of the latter to the sounding of the whistle. The denial by the one and the affirmance by the other produces a conflict of evidence, which it is the province of the jury to determine." Carnefix v. Kanawha & M. R. Co., 73 W. Va. 534, Pt. 3, Syl., 82 S. E. 219.

4. HlNKELMAN CASE overruled-

The case of Hinkelman v. Steel Corporation, 114 W. Va. 269, 171 S. E. 538, overruled.

Error to Circuit Court, Roane County.

Action by Gladys Tawney, administratrix of the estate of Henry Clay Tawney, deceased, against M. C. Kirkhart and another, for wrongful death in railroad crossing accident. To review a judgment for plaintiff, defendants separate writs of error.

Affirmed.

Fox, President and Haymond, Judge, dissenting.

Riley, Judge, concurring.

Ambler, McCluer & Davis, S. P. Bell and Harper & Baker, and Rummel, Blagg & Stone, for plaintiffs in error.

William S. Ryan, for defendant in error.

Jackson, Kelly, Morrison & Moxley, amicus curiae on behalf of West Virginia Coal Association and West Virginia Manufacturers Association.

Kenna, Judge:

To a judgment for $8,000.00 recovered in the Circuit Court of Roane County in an action of death by wrongful act brought by Gladys Tawney, Administratrix of the Estate of Henry Clay Tawney, deceased, against M. C. Kirkhart and The Baltimore and Ohio Railroad Company, a Corporation, the defendants below each prosecutes a separate writ of error, the accident in which plaintiff's decedent met his death having occurred at a public crossing of the Baltimore and Ohio Railroad near Big Chimney, Kanawha County, at approximately 8:00 o'clock on the morning of April 21, 1945, when a truck in which decedent was riding was struck by one of the named railroad's passenger trains traveling on scheduled time from Charleston to Grafton.

In order to clearly state the assignments of error it will first be necessary to state the circumstances of and preceding the accident.

Henry Clay Tawney lived near Newton, a hamlet in Roane County between twenty and twenty-five miles northeast of Clendenin and not far from the Clay County line. He was employed by the United Fuel Gas Company as one of a crew to do repair work on its pipe lines and other outdoor work. M. C. Kirkhart, one of the defendants, was the work foreman in charge and as such was furnished with a three-quarter ton Ford pickup truck covered by a canvas top supported by a metal framework and held in place by being fastened to the sides of the truck's body. The truck he kept at his home, also near Newton, and used for the purpose of carrying to and from their work the members of the crew that worked under his direction and hauling their tools. The crew, on this occasion, was fourteen in number and its members lived near either Newton or Clendenin or on or near the road between. The general foreman lived near Clendenin, and it was customary for Kirkhart, and evidently others, to report to him at the time the day's pay began at about seven-thirty A. M. in order to receive instructions as to the nature and location of the work for the day. Kirkhart would then with the truck take the crew to the first of the day's jobs, on this occasion several miles south of Big Chimney and reached from Clendenin by following State Route 119 which crosses Elk River between Big Chimney and a railroad station on the other side of the river known as Bream.

On the morning of the accident Kirkhart had picked up most of his repair gang before he reached Clendenin. There he stopped at the home of the general foreman, got directions for the day, and proceeded toward the location of the first of the day's work. As he started across the bridge at Big Chimney he, as usual, was driving the truck, with Ashley sitting next to him on the driver's seat and Hensley on the right side. This left twelve men in the body of the truck under its tarpaulin cover which was closed at the front, it having a small isinglass window, and open at the back. After crossing the bridge the truck was traveling slowly with decreasing speed, so that when it approached the railroad one hundred and seventy-four feet distant it was barely creeping. It was there that between 7:55 and 8:00 o'clock it was struck by a B. & O. train. Since the truck was thrown approximately forty feet forward and to the left where it was found upright on all four wheels, it is unlikely that it reached the track.

Since both M. C. Kirkhart and the Baltimore and Ohio Railroad Company are defendants in this action and since their interests, as disclosed by the testimony, to a large extent conflict, they appeared and pleaded separately in the court below, and here, as stated, they prosecute separate writs of error. The assignments briefed and submitted by the Baltimore and Ohio Railroad Company or the points to which those assignments were reduced by its counsel are as follows:

That it was error for the trial court to refuse the railroad defendant four peremptory challenges in denying it a panel of twenty-four jurors; that the court erred in refusing to direct a verdict in its favor; that the fireman and engineer maintained a reasonable and proper lookout; that the fireman, he being the only person who could view the crossing from the engine, had a right to assume that the truck would stop and permit the train to pass; that the plaintiff has failed to show that crossing signals were not given and that the failure to give the crossing signals was the proximate cause of the death of plaintiff's decedent; that the statutory warning signals were given as is shown by the overwhelming weight of the positive, as distinguished from, the negative, testimony; that Kirkhart was under a positive duty to stop, look and listen effectively, and that his failure to perform that duty was the sole cause of the accident; that Kirkhart was negligent in failing to observe the train approaching; that the sole proximate cause of the accident was Kirkhart's negligence; that plaintiff's decedent was guilty of contributory negligence; that the verdict is against the clear preponderance of the testimony; and that Kirkhart is liable regardless of the compensation act. The railroad company also assigns as error the refusal of the trial court to give its instructions Numbers 13 and 18, which will be discussed in connection with other assignments.

Kirkhart's contention is that he exercised reasonable care and that the accident occurred due to the heavy fog limiting visibility and to the fact that the Baltimore and Ohio Railroad Company failed to give the crossing signal and failed to maintain a proper lookout. Kirkhart also contends that because of the fact that he is an employee of the United Fuel Gas Company, a subscriber under the West Virginia Workmen's Compensation Act, and the accident occurred during the course of and as a result of his employment, he is protected by the compensation coverage of his employer, and, even in the event of his negligence, is not liable.

The declaration in this case charges concurrent negligence, which is separate acts of negligence operating simultaneously without either, or any, of which the injury would not have occurred, the liability for negligence not necessarily resting upon its being the soZe cause of an injury. However, if it can be established that one tort feasor's conduct was the sole cause of the injury, that fact, of course, excludes concurrent liability. As between the two defendants that is the contention here.

We will deal first with the assignment that it was error not to direct a verdict in favor of the Baltimore and Ohio Railroad Company because its discussion will re- quire a detailed account of the testimony that will serve also to throw light on the other assignments.

The negligence of which the railroad defendant is accused is the failure to maintain a proper lookout and the failure to comply with the provisions of Code, 31-2-8, by giving signals of the approach of its train to the Bream Crossing at a distance of at least sixty rods therefrom and to continue signals for a time sufficient to give due notice of the train's approach. We are of the opinion that on both these questions there was conflict in the testimony with the result that there was sufficient evidence on both sides to have sustained a verdict in favor of either.

As to maintaining a lookout, the testimony of the engineer, whose seat was on the right of the cab is to the effect that a slight curve to the left in the railroad track a short distance below Bream caused the boiler of the locomotive to obstruct his view of the track, making it impossible for him to see the crossing in time to have stopped or slowed down his locomotive in order to prevent a collision thereon. There was a plat introduced by the railroad...

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