The City Of Elkins v. Western Md. Ry. Co.
| Decision Date | 12 October 1915 |
| Citation | 76 W.Va. 733 |
| Court | West Virginia Supreme Court |
| Parties | The City of Elkins v. Western Maryland Railway Co. |
Eailroads Crossing Duty of Traveler Contributory Negligence Question for Jury.
It is not negligence per se in all cases for travelers upon a public street or road, on approaching a railroad crossing, not to stop, as well as to look and listen before attempting to cross the track. Whether one has been negligent in failing to stop is generally presented as a mixed question of law and fact to be submitted to the jury, and not as one of law for the judgment of the court.
Error to Circuit Court, Randolph County.
Action by the city of Elkins against the Western Maryland Railway Company. Judgment for defendant, and plaintiff brings error.
Reversed, and new trial awarded.
R. II. Allen and F. E. Tallman, for plaintiff in error. E. A. Bowers, for defendant in error.
The court below, on motion of defendant, struck out all of plaintiff's evidence, directed a verdict for defendant, and pronounced the judgment complained of, that plaintiff take nothing by its action.
The action was to recover the value of a horse, belonging to plaintiff, alleged to have been negligently run over and killed, at a public crossing, by one of defendant's engines in charge of its servants.
The horse, at the time it was injured, was in charge of, and being driven by two of plaintiff's servants, in hauling road material across the railway tracks of defendant, to one of the public streets of said city.
The evidence was sufficient and competent to go to the jury on the question whether any bell was rung or whistle blown by defendant's enginemen in approaching the crossing. And the evidence is uncontradicted that plaintiff's servants in approaching the crossing and from their position on the seat of the wagon, and driving the team in a walk, both looked and listened, but their view being obstructed by a long line of freight cars standing on the first of the four parallel tracks of defendant, they neither saw the approaching engine, nor heard any bell rung, or whistle blown, nor any noise of or steam escaping from the engine, until it came up on the second track from behind the freight cars on the first track just as the horses stepped upon the track upon which the engine was. Both servants say they did not stop; they only looked and listened. The sole question presented for our decision is whether under all the facts and circumstances attending them at the time plaintiff's servants were guilty per se, and as matter of law, of contributory negligence in not stopping before going upon the track, precluding recovery for the alleged negligence of defendant. The evidence proves conclusively that on the first of defendant's tracks, and in the direction from which the engine was approaching, there was a long string of freight cars, some, if not all, of them loaded with coal, and which completely obstructed the view of the plaintiff's servants of the other tracks in that direction and of all objects thereon; that there were also one or more cars on the same track on the opposite side of the crossing, obstructing to that extent the view in that direction; that the space between the cars on the track was about twenty feet, giving ample room for teams to pass between the cars, but very little room to see objects on the tracks on either side of the crossing. The evidence furthermore shows a slight up grade in going up to the railroad tracks; that plaintiff's teamsters had crossed these tracks with their load, but a few moments before the accident, and were at the time on their way back with the empty wagon; that at least one of the horses was a spirited animal, needing watching when about railway trains and engines, that the tracks on both sides of the crossing, for some distance, except the first one, were clear of cars and engines, except as to the engine doing the injury, and that plaintiff's servants were familiar with the crossing, and of the dangers incident to crossing the same.
It is conceded by counsel for defendant, and as we think it must be that it is not negligence per se, in all cases, for travelers upon public roads and streets, on approaching a railroad crossing, not to stop, as well as to look and listen for approaching trains before attempting to cross the track, as for example, where there is a long stretch of level track in both directions, and with nothing intervening to obstruct the view, for in such cases there would be nothing to gain by stopping.
But it is earnestly insisted that when the facts and conditions are not as assumed, but are like those disclosed in this case, and under our decisions, not to stop, as well as look and listen, is per se negligence precluding recovery for the alleged negligence of the railway company in failing to perform its statutory duties to ring the bell or blow the whistle. In such cases, it is argued, it must be assumed that the injury would not have occurred if the traveler had also stopped, as well as looked and listened.
The case mainly relied on to support the judgment is our case of Bey el v. Newport News & M. V. B'd. Co., 34 W. Va. 538, regarded as the leading case on the subject, and frequently referred to as such and followed in subsequent decisions. While the opinion in that case, arguendo, does refer to and quote approvingly from numerous Pennsylvania cases, where it seems a hard and fast rule has been established, requiring a traveler in all cases before crossing a railroad at grade to stop, look and listen, that case cannot, we think, be regarded as having committed us to the unalterable rule of practice in Pennsylvania. No such rule is announced in the syllabus of the case, and in our opinion it is contrary to sound reason, and to the great weight of authority on the subject.
True in cases of peculiar circumstances this duty to stop, when no two minds could differ as to the facts and the propriety and necessity therefor, should be imposed as matter of law, but such a rule can have no general application. In the Bevel Case, the proof was that the plaintiff neither stopped, looked or listened at any place in the public road where he could or should have heard the signals from the approaching engine, but drove heedlessly upon the track of the defendant. He was behind a hill running down almost to the railroad, cutting off his sight and to some extent his hearing, until he got within a short distance of the track, and when he knew the train which struck him was about due. In such a case his own evidence disclosing the facts, the court could properly say, as matter of law, that plaintiff was guilty of...
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