Virginian Railway Company v. Rose

Decision Date16 May 1959
Docket NumberNo. 7796.,7796.
Citation267 F.2d 312
PartiesVIRGINIAN RAILWAY COMPANY, a corporation, Appellant, v. James Ernest ROSE, an infant, by Ernest Rose, his next friend, and Ernest Rose and Janice Rose, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Fletcher W. Mann, Beckley, W. Va., for appellant.

W. A. Thornhill, III, Beckley, W. Va. (W. A. Thornhill, Beckley, W. Va., on the brief), for appellees.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and BOREMAN, District Judge.

SOBELOFF, Chief Judge.

The defendant railroad company appeals from adverse judgments entered in the District Court in favor of James Ernest Rose, an infant, for personal injuries, and in favor of his parents for medical expenses and loss of their son's services.

The defendant operates a single track railway through Wyoming County, West Virginia, which crosses a bridge, or trestle, located on the perimeter of the Town of Pineville, having a population of about 1800. The structure is 123 feet long, is 24 feet above a creek and has an eight degree curve to the right. On the afternoon of May 15, 1957, in clear weather, Jimmy Rose, then 9 years and 8 months of age, was fishing from the trestle. Feeling "the track vibrating" and hearing "some wheels squeaking," he looked up and saw a train approaching. The train "wasn't too close," and as Jimmy ran to get off the trestle, his foot got "hung" in a crack between the ties. When he pulled his foot out he was hit by the defendant's train, carried 50 feet beyond the end of the bridge, and thrown off the track. The engineer did not see him and had no knowledge of the accident until signalled by a dispatcher one mile beyond the point of impact to stop the train. The train's speed was 12 to 14 miles per hour. Although the engineer stated in his deposition that his view of the trestle was blocked by the 49 foot hood of the locomotive, there was ample competent testimony and physical fact from which a jury could find that the engineer, if he had been looking, could have seen the plaintiff in time to stop the train and avoid the accident.

The injuries included the loss of one leg and most of the right arm. The boy has had to undergo numerous operations and now uses artificial limbs. The jury returned a verdict of $150,000.00 for him and $17,500.00 for his parents.


The boy was admittedly a trespasser on the defendant's railroad trestle. The jury was instructed that those who are in charge of trains have the duty to keep a reasonable lookout for children trespassing on the tracks, not a constant lookout but "a reasonable lookout consistent with the proper performance of their other duties in running the train"; and that the duty varies with the circumstances at the time and place of the accident, the duty being slight "if the place is remote and persons are not known by the train crew to use the track or ordinarily expected to be on it," and increasing "in degree in proportion to the density of population and the forseeable probability of persons being on the track." Under this instruction the jury could reasonably conclude that the railroad was negligent in not maintaining a proper lookout, for testimony by numerous persons revealed that the area around the trestle was popular for fishing and that they and others had fished from the bridge.

However, the defendant contends that the law in West Virginia is contrary to the court's instruction in that no duty is imposed upon a railroad to maintain a lookout for trespassers. As to such persons, it is argued that a duty arises only after they are actually discovered on the tracks, the duty then being to refrain from inflicting wilful or wanton injury. The Supreme Court of Appeals of West Virginia appears to have developed simultaneously two doctrines as to a railroad's duty to persons injured at a place other than a public crossing. The defendant relies on the line of cases — all involving adult trespassers — which hold that the railroad owes a duty no higher than not to injure them wilfully or wantonly after they have been discovered on the tracks. Raines v. Chesapeake & O. Ry. Co., 1894, 39 W.Va. 50, 19 S.E. 565, 24 L.R.A. 226; Huff v. Chesapeake & O. Ry. Co., 1900, 48 W.Va. 45, 35 S.E. 866; Ballard v. Charleston Interurban R. Co., 1933, 113 W.Va. 660, 169 S.E. 524; Barron v. Baltimore & O. R. Co., 1935, 116 W.Va. 21, 178 S.E. 277; Connelly v. Virginian R. Co., 1942, 124 W.Va. 254, 20 S.E.2d 885; Hall v. Monongahela West Penn Public Service Co., 1946, 128 W.Va. 547, 37 S.E.2d 471; Payne v. Virginian Ry. Co., 1948, 131 W.Va. 767, 51 S.E.2d 514; and Stokey v. Norfolk & Western Ry. Co., 1949, 132 W.Va. 771, 55 S.E.2d 102. Several of these cases (Raines, Huff and Payne) are inapposite, for the injuries occurred in railroad yards, a circumstance held by the West Virginia Court to be sufficient to exonerate the railroad from liability to trespassers. See Payne v. Virginian Ry. Co., 1948, 131 W.Va. 767, 51 S.E.2d 514, 517. Moreover, the recent Hall and Stokey cases do not pertain to lookout, for in them the railroads were found to be wantonly negligent in not stopping the train after discovering the trespassers.

The plaintiffs, on the other hand, point to those cases which hold that, at least where infants are concerned, the railroad must keep a reasonable lookout to discover trespassers on the tracks. Gunn v. Ohio River R. Co., 1896, 42 W.Va. 676, 26 S.E. 546, 36 L.R.A. 575; McGuire v. Norfolk & W. R. Co., 1912, 70 W.Va. 538, 74 S.E. 859; Bias v. Chesapeake & O. Ry. Co., 1899, 46 W.Va. 349, 33 S.E. 240; Dempsey v. Norfolk & W. R. Co., 1911, 69 W.Va. 271, 71 S.E. 284, 34 L.R.A.,N.S., 682; Prok v. Norfolk & W. R. Co., 1915, 75 W.Va. 697, 84 S.E. 568; Dickinson v. New River & Pocahontas Consol. Coal Co., 1915, 76 W.Va. 148, 85 S.E. 71, 73; and Robertson v. Coal & Coke R. Co., 1920, 87 W.Va. 106, 104 S.E. 615.1

McGuire v. Norfolk & W. R. Co., 1912, 70 W.Va. 538, 74 S.E. 859, 862 affords an explanation for these seemingly variant principles:

"The law imposes a greater duty upon railroad companies to keep a lookout for small children trespassing upon its tracks than it does in case of adult persons in full possession of their faculties. It owes to the former the duty to keep a reasonable lookout for them consistent with the other duties of its employés engaged in the operation of its trains; and if children are discovered upon the tracks, or perilously near the same, the company\'s servants are bound to exercise reasonable diligence to avoid injury to them. Defendant\'s instruction No. 7 was therefore properly refused. By it defendant asked the court to apply the same rule to the infant deceased that the law applies in the case of an adult trespasser."

It is not for us to debate the justification for this distinction, but only to follow the law as enunciated by the highest court of the State. Undoubtedly, the West Virginia Court has permitted recovery by infant trespassers in circumstances where relief would be denied to adults. Indeed, the defendant has cited no case denying recovery to an infant trespasser where the railroad could have avoided the accident, had a reasonable lookout been maintained.2 A study of the cases convinces us that the trial Judge properly applied the West Virginia law, which required the case to be submitted to the jury.


The defendant asserts that the trial Judge should have declared the plaintiff guilty of contributory negligence as a matter of law, and that he erred in submitting the question to the jury. We do not agree. In West Virginia the presumption, although rebuttable, is that a child between the ages of 7 and 14 years is incapable of contributory negligence, Pitzer v. M. D. Tomkies & Sons, 1951, 136 W.Va. 268, 67 S.E.2d 437, 442, and where the defendant owes a duty to exercise reasonable care for an infant plaintiff's safety, the burden of proving such a plaintiff's mental capacity to comprehend and avoid danger is on the defendant. Simmons v. Chesapeake & O. R. Co., 1924, 97 W.Va. 104, 124 S.E. 503, 505. We cannot say, nor was it for the District Judge to say, as a matter of law that the plaintiff, 9 years and 8 months of age, acted unreasonably and thoughtlessly for a boy of his age and intelligence by fishing from the railroad trestle and failing to escape from his position of danger in time to avoid the oncoming train.3 As was said in Stokey v. Norfolk & Western Ry. Co., 1949, 132 W.Va. 771, 55 S.E.2d 102, 110: "Whether decedent 74 years old could or could not have escaped from her perilous position on the railroad's bridge undoubtedly is a jury question."


The defendant further contends that the parents are not entitled to recover for the medical expenses and loss of their son's services because the mother herself was negligent in permitting him to be upon the trestle. On the afternoon of the accident, she drove the boy to a young friend's home, which was next to the railroad tracks, so that he could go fishing with the friend and his grandfather. The mother left Jimmy in front of the house, said that she would return to pick him up in an hour, and drove off. Discovering that no one was in the house, Jimmy proceeded alone to the railroad trestle where the accident happened....

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