Teel v. Ohio River R. Co.

• Decision Date: 09 March 1901
• Citation: 38 S.E. 518,49 W.Va. 85
• Parties: TEEL v. OHIO RIVER R. CO.
• Court: West Virginia Supreme Court

38 S.E. 518

49 W.Va. 85

TEEL v. OHIO RIVER R. CO.

Supreme Court of Appeals of West Virginia.

March 9, 1901

Syllabus by the Court.

1. A railroad engineer who discovers an obstructor on the right of way of his train is not bound to stop his train unless he is aware that such obstructor is in such a helpless condition that he cannot protect himself by avoiding the train, but the engineer's only duty towards such obstructor is to give the alarm signals necessary to warn a person of sound mind and good hearing in time to allow such person to vacate the right of way.

2. A person, sound of body and mind, who deliberately sits down on the right of way of a train and goes to sleep, or becomes so mentally absorbed as not to keep a proper lookout for such train, is guilty of gross negligence; and if he thereby fails to hear the alarm signals given by the approaching train, and his death follows, the railroad company cannot be held liable therefor.

3. Adults are presumed to be sound of mind and body and capable of avoiding accidents; and, if an adult person is killed on its right of way by a railroad train, the company cannot be held liable until it be shown that such person was in a helpless condition, and that the engineer had knowledge of such helplessness in time to have stopped his train to have prevented such killing.

Error to circuit court, Cabell county; E. S. Doolittle, Judge.

Action by P. M. Teel against the Ohio River Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Switzer & Wiatt and Harvey, Wyatt & Hutchinson, for plaintiff in error.

Vinson & Thompson and H. P. Camden, for defendant in error.

DENT J. P. M. Teel,

administrator of George Teel, deceased, obtained a writ of error to this Court from the judgment of the circuit court of Cabell county sustaining a demurrer to the evidence in a certain case therein pending, wherein he was plaintiff and the Ohio River Railroad Company was defendant. The facts are as follows: George Teel, deceased, was struck and killed by a passing train of the defendant while he was sitting on the platform at Johnston's Grove or Midway Park in Central City, said county. When the engineer discovered him, he was sitting on the platform, with his feet near the rail, and leaning forward, with his head downward. He immediately began to blow the whistle, not less than 300 feet away, in a continuous, alarming, and distracting manner and when he found this produced no effect he tried to stop his engine; but he was too close to do so entirely, and some portion of the train struck Teel about the head with such force as to result in his death. There is no dispute about the engineer's sounding the alarm whistle, but the contention of the plaintiff is that the engineer was guilty of negligence in not noticing the helpless condition of Teel and stopping the train in time to save him. The deceased was a young man 25 years of age, with no physical defects of either sight or hearing, and it is not known that he was either drunk or asleep. The jury found a verdict of $2,200 subject to the demurrer to the evidence.

The question is mooted in this case as to whether this court, in determining a demurrer to evidence, is to be governed by the rule as stated in Mapel v. John, 42 W.Va. 38, 24 S.E. 608, 32 L. R. A. 800, and approved in Talbott v. Railway Co., 42 W.Va. 560, 26 S.E. 311, or the rule as contended for in Hogg, Pl. & Forms (2d Ed.) 537, as sustained by Gunn v. Railroad Co., 42 W.Va. 676, 26 S.E. 546, 36 L. R. A. 575; Bennett v. Perkins, 47 W.Va. 425, 35 S.E. 8; and Shaver v. Edgell, 48 W.Va. 502, 37 S.E. 664. The rule as stated in the first cases is that: "Upon a demurrer to evidence the demurrant, in this state, is not held to waive any of his competent evidence; but where it conflicts with that of the demurree it will be regarded as overcome, unless it manifestly appears to be clearly and decidedly preponderant." Talbott v. Railway Co., cited. This rule is deduced from the change in section 9, c. 131, of the Code, which provides: "In the trial of a case at law in which a writ of error or supersedeas lies to the court of appeals a party may except to any action or opinion of the court, and tender a bill of exceptions, and if the action or opinion of the court be upon any question involving the evidence or any part thereof, either upon a motion for a new trial or otherwise, the court shall certify all the evidence touching such question, and the judge shall sign any such bill of exceptions (if the truth of the case be fairly stated therein), and it shall be made a part of the record in the case, and the whole of the evidence so certified shall be considered by the court of appeals, both upon the application for and hearing of the writ of error or supersedeas." It is maintained that this does not apply to demurrers to evidence, for the reason that all the evidence even before the statute had to be included in the demurrer; and yet, while this is true, the court was not required to consider it all, but might reject the conflicting evidence of the demurrant and give it no consideration. This law is general, and applies to all cases in which a writ of error or supersedeas lies, and requires not only a complete certification of the evidence, but a full consideration thereof in all cases where such writs lie, without exception; thus most certainly including cases in which there is a judgment on demurrer to evidence, and which may be removed by writ of error to the court of appeals. Before the enactment of this statute a motion to set aside the verdict of a jury was treated as a demurrer to the evidence, and all the conflicting evidence of the party making the motion was disregarded.

After its enactment the rule was established that the court must consider all the evidence, whether conflicting or not, and if the verdict of the jury was contrary to the evidence, or plainly against the decided and clear preponderance of the evidence, or without sufficient evidence, it must be set aside. Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686. The rule as contended for by Mr. Hogg in his valuable work and which he not unjustly claims to be sustained by the later decisions of this court, is the old rule that in demurring to the evidence the demurrant must waive all his own evidence which to any extent conflicts with the evidence of the demurree, and that the court, notwithstanding the statute, is not bound to consider such conflicting evidence, although it plainly and decidedly preponderates in favor of the demurrant. The principal case on which that careful and thoughtful author relies to sustain his view is Gunn v. Railroad Co., 42 W.Va. 676, 26 S.E. 546, 36 L. R. A. 575. This case, however, is not entirely satisfactory on this question; for, while he intimates that such is the rule, JUDGE Brannon says on page 681, 42 W. Va., page 547, 26 S. E., and page 578, 36 L. R. A.: "The evidence must be interpreted most favorably to the demurree, so that he may have all the benefit which a verdict in his favor by the jury would give him. *** If the evidence is such that, if there were a verdict in favor of the demurree the court ought not to set it aside, then on the demurrer to the evidence the court ought to give judgment against the demurrant." This has been a long-established rule in arriving at a proper determination of a demurrer to evidence; that is to say, that the demurrer to evidence must be treated as though it were a motion to set aside the verdict of a jury, just as a motion to set aside the verdict of a jury is treated as a demurrer to evidence. They both have heretofore stood...