Waller v. Norfolk, (No. 6617)

• Court: Supreme Court of West Virginia
• Writing for the Court: MAXWELL, J.
• Citation: 108 W.Va. 576
• Parties: Malvina Waller v. Norfolk & Western Railway Company
• Docket Number: (No. 6617)
• Decision Date: 18 February 1930

108 W.Va. 576

Malvina Waller
v.
Norfolk & Western Railway Company

(No. 6617)

Supreme Court of Appeals of West Virginia.

Submitted February 11, 1930.
Decided February 18, 1930.

[108 W.Va. 576]

1. Railroads; Automobile Passenger Must Use Such Reason-

able Care for Own Safety as Ordinarily Prudent Person Would Exercise; Passenger Failing to Warn Automobile Driver That Boards Between Railroad Tracks at Crossing Did Not Extend Full Width of Highway, Causing Automobile to Stall, Held Contributory Negligence as Matter of Law.

A passenger in an automobile must use such reasonable care for his own safety as an ordinarily prudent person would exercise under like circumstances, and where the facts show that a man of mature years, in possession of his faculties, sitting on the front seat of an automobile on the right side of his eighteen-year-old son who was driving the automobile, failed to warn his son of a patent defect in the extreme right side of a railroad crossing which they were approaching, the said defect being clearly observable by the father as they approached the crossing, the father having ample time to give such warning before the automobile reached the defect, and the automobile became stalled by reason of the defect, and while so stalled was struck by a train, resulting in the death of the father, he was guilty of contributory negligence as a matter of law. (p. 579).

2. Same Personal Representative of Automobile Passenger

Killed at Crossing, as Result of Contributory Negligence, Could Not Recover Under Last Clear Chance Doctrine, Unless Trainmen Saw or With Reasonable Care Could Have Seen Peril.

Where a train strikes a stalled automobile on a railroad crossing killing a passenger in the automobile, and it appears

[108 W.Va. 577]

that the said passenger was guilty of contributory negligence in failing to warn the automobile driver of an obvious defect in the crossing which caused the automobile to stall, the said decedent's personal representative cannot recover under the doctrine of last clear chance unless it appears from a preponderance of the evidence that either the engineer or fireman on the engine of the train saw, or, by the exercise of reasonable care, should have seen the peril of the deceased, and having reason to suppose that he could not save himself, failed to use the means at their command to avoid the injury, (p. 580).

3. Negligence; Plaintiff Relying on Last Clear Chance Doc-

trine Must Prove by Preponderance of Evidence That, by Ordinary Care, Defendant Could Have Avoided Injury.

A plaintiff relying upon the doctrine of last clear chance has the burden of proving by a preponderance of the evidence that, by the use of ordinary care, the defendant, after actual or imputed knowledge of the plaintiff's peril, could have avoided the injury, (p. 583).

4. Same Ordinarily Liability Under Last Clear Chance Doc-

trine is Fact Question for Jury; Where Physical Facts Preclude Operation of Last Clear Chance Doctrine, Court Should so Declare.

While the matter of liability under the doctrine of last clear chance is ordinarily a question of fact for jury determination, yet, where the physical facts are such as to preclude a basis for the operation of said doctrine, the court should so declare and should not submit the question to the jury. (p. 583).

Error to Circuit Court, Mingo Countjr.

Action by Malvina Waller against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

F. M. Rivinus, Goodykoontz & Slaven, and Holt (& Holt, for plaintiff in error.

George W. Crawford, for defendant in error.

Maxwell, Judge:

Defendant prosecutes this writ of error to a judgment of the circuit court of Minsro county for $7,000 damages for

[108 W.Va. 578]

the alleged wrongful death of plaintiff's decedent, Lazarus Waller, at a railroad crossing, at Nolan in Mingo county.

There are double railroad tracks through Nolan, extending practically east and west. The north track is for the east bound trains and the other for the west bound. The public highway crosses the railroad tracks from the north to the south side at the east end of the town, extending practically parallel with the tracks through the town and there re-crosses to the north side, thence in the general direction of the tracks in a westerly direction.

Soon after midday of September 4, 1928, the deceased and his son, Clifford Waller, and "Doc" Marcum and his wife approached, on the highway from the east, the town of Nolan en route from Williamson to their home in Wayne county. Clifford was driving the car; his father sat at his right. The Marcums occupied the rear seat. At the crossing just east of the town they crossed safely in front of a freight train going west. Clifford says the train was some distance away, running slowly, and that the automobile passed over the crossing without risk. The engineer and fireman say that the automobile crossed so closely in front of the engine that they feared a collision. However, both the train and automobile proceeded westward through the town toward the second crossing already mentioned. When the automobile reached the second crossing it stopped on the southern track with one or both of the front wheels just over the outside rail, and was struck by a fast moving east bound train which killed Lazarus Waller and the two Marcums. Clifford jumped and avoided injury. The train first mentioned passed over the crossing on the west bound tracks almost instantly after the accident.

At the crossing where the accident occurred the boards which were laid along side of the rails were not quite as long as the width of the traveled portion of the highway, though amply wide for two automobiles to pass thereover at the same time. The board on the inside of the first rail which the Waller automobile encountered lacked three or four feet of extending the full width of the traveled way. Clifford says that the right front wheel of the automobile dropped over the rail beyond the end of this board, causing the automobile to

[108 W.Va. 579]

stall; that the motor also stopped, and that while in that plight the train struck them. There is a sharp issue of fact as to whether the automobile was stopped before it proceeded upon the crossing. It is not seriously questioned that the automobile entered the crossing at a moderate rate of speed. Clifford says the car was in low gear. There is also an issue as to whether proper warning signals were given by the engine as the train approached the crossing. Though there was considerable testimony of witnesses who say they did not hear the signals, there is a substantial number of witnesses who say unequivocally that they heard the signals.

Defendant takes the position that, inasmuch as the fact that the board at the inside of the first rail reached by the automobile in question did not extend the full width of the traveled way was plainly discernible by travelers approaching from the east, and that the boards were all of ample length to permit automobiles to pass thereover, and even for two automobiles to be thereon at the same time and have plenty of room, it was negligent for the driver to drive the automobile over the rail beyond the end of the board and thus to cause the automobile to become stalled on the...