Woolwine's Adm'r R. v. Ches. & O. R'y Co.

• Decision Date: 02 April 1892
• Citation: 36 W.Va. 329
• Court: West Virginia Supreme Court
• Parties: Woolwine's Adm'r r. Ches. & O. R'y Co.

36 W.Va. 329

Woolwine's Adm'r

v. Ches. & O. R'y Co.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 1892.

Decided April 2, 1892.

Damages Negligence.

A person, who without invitation; visits a telegraph-office merely for the purpose of paying a friendly call to the operator, which office is owned and occupied by a railroad company for its own purposes and convenience, and which is located on its land and near its track, from which occassional messages are sent and received for outside parties for pay, visits said office as a mere voluntary licensee, subject to the concomitant risks and perils, and no duty is imposed upon the owner or occupant to keep its premises in safe and suitable condition for such visitors, and the owner is only liable for such willful or wanton injury as may be done to such licensee by the gross negligence of its agents or employes.

2. Damages Negligence.

Where there is no controversey in regard to the facts or inferences that may be fairly drawn therefrom, the question of negligence is one of law for the Court to determine.

3. Damages Negligence.

A case in which the facts proven did not tend in any clearly appreciable degree to sustain the plaintiff's claim, and the evic ence was properly excluded from the jury by the Court.

Adams $ Miller for plaintiff in error, cited Patt. R'y Acc. § 187; 6 L. T. (N. S.) 684; 65. Pa. St. 269; 11 W. K Cas. (Pa. i 455; 58 Wis. 646; 15 Eng. & Am. R. R. Cas. 424; 53 Wis 626; 1 F. & F. 361; 92 NJ. 289; 106 Mass. 461; Id. 180; 1 Shear. & Redf. Neg. § 97; Id. § 98; 101 X Y. 391; 120 Mass. 306; 69 Me. 173; 7. C. B. (K S.) 731; 68 N. Y. 283; 69 Me. 306; 4 Ex. L. R. 257; 38 Up. Can. Q. B. 173; 48 vt. 127; 4 Shear. & Redf. § 99; 22 0. St. 227; 50 Barb. 39; 50 Mo. 461; 55 111. 226; 38 111.424; Thomp. Neg. 1155; 36 Md. 366; 64 Mo. 439; 23 Yt. 378; 7 Mete. 602; 19 Conn. 507; 14 How. 485; 17 Wall. 657; 26 Conn. 591; 1 Ad. & El. 29; 59 Pa. St. 129; 2 Ror. R'ys 1131; 79 Pa. St. 33; 60 Mo. 475; 2 W. R'y Law, 1206, 1270, 1271; 4 Houst. 103; 7 C. B. 73; 88 N. C. 129; 9 C. B. 420; Whart. Neg. §§ 348, 388; 14 Week. Rep. 611; Cool. Torts 358; Laws. Rights & Rem. § 1194; Patt. R'y §§ 187, 188; 133 Mass. 121; 92 K Y. 289; 34 W. va. 514; 25 W. va, 570.

J. E. Chilton for defendant in error, cited 25 W. Va. 692; 35 W Va. 117; 1 Shear. & Redf. Neg. § 15; Big. L. Cas. Torts 662; 34 W. Va. 514; 2 Wood R'y Law 1270, 1271; 83 Va. 554; 22 Fed. Rep. 609; Big. Torts 697 note; 83 Va. 102; 10 Allen 275; 59 Pa. St. 129; 25 Mich. 1; 67 X Y. 366, 370; 41 Am. Rep. 572; 99 Mass. 216; 29 O. St. 364; 10 Mete. 371J 101 X Y. 381; 142 Mass. 296; 61 Eng. Com. 731; 100 Ind. 221; 66 la. 1708, 713; 69 Me. 173; 2 Wood R'y Law 1271; Bish. Non. Con. Law 446, 1054; Cool. Torts 358; 58 Wis. 646; 88 X C. 129; 30 W. va. 228; 17 Wall. 651; Pat. R'y Acc! Law 184-188; Barry v. X Y. Cent. R'y Co. 92 X Y.

English, J udge:

This was an action of trespass on the case, instituted on the 1 3th day of March, 1890, by M. A. Manning, adminis- trator of the estate of A. D. Wool wine, deceased, in the Circuit Court of Summers County, against the Chesapeake & Ohio Railway Company, charging that the death of his intestate was occasioned by the gross carelessness and negligence of the defendant, and claiming ten thousand dollars damages. There was a demurrer interposed to the declaration, which was overruled; the defendant pleaded "not guilty," and the case was submitted to a jury. The plaintiff, having introduced his evidence, rested his case, and the defendant moved' the court to strike out all of the plaintiff's evidence, which motion was sustained, and the plaintiff's evidence was stricken out, to which action of the court the plaintiff excepted, and thereupon the jury rendered a verdict for the defendant. The plaintiff*then moved the court to set aside said verdict, which motion the court overruled, and the plaintiff excepted, and tendered a bill of exceptions, setting out all of the evidence of the plaintiff, and the plaintiff applied for and obtained this writ of error.

The facts shown by the evidence are, in substance, as follows: At the east end of the Big Bend tunnel, in said county of Summers, and about eighty yards from the eastern portal of said tunnel, the defendant had constructed a switch, which diverged from the main track of the defendant to the right, passing along near the bank of the Greenbrier river; and that immediately on the bank of said river, and between said switch and the river, the defendant had erected a small building, fourteen by sixteen feet in size, for its own convenience as a telegraph office, the front part of which building rested on the bank, and the back rested on perches. Those living in the immediate vicinity of this telegraph office, were tunnel hands, and were employes of the defendant.

The plaintiff's intestate was a telegraph operator on the Norfolk & Western Rail road, and was at home on a visitto his parents, who lived about two miles from the tunnel; and on the evening of the 6th day of February, 1890, he paid a visit to this office, being an acquaintance of Bryant, the operator. At the time of this visit the train which was used for working in the tunnel was standing in front of the telegraph office, on the side track, which was seven feet from the front of said office, and had been so standing for one hour and fifteen minutes, and it appears that Joe Towns, one of the employes, whose duty it was to close the switch after the tunnel train came in on the side track, bad failed to'do so, and a freight train, coming east through the tunnel, ran into this open switch on to the side track, and wrecked the tunnel train, throwing some of its cars against said office, knocking it over the river bank into the river, thereby causing the death of the plaintiff's intestate, who had entered said telegraph office about twenty five minutes before, and at the time of the accident was lying on a table in the said office.

It appears that the plaintiff's intestate had, about a year previous to that time, been employed by said Bryant, and worked a week in his place as operator in said office; and the natural inference is that he called on this occasion, as is natural for persons engaged in the same business, to pay Bryant a friendly visit. So far as is disclosed by the evidence, he had no business to transact of any character with the office, although it appears that messages had occasionally been sent and received from this office by parties having no connection with the railroad, but that the office was maintained by the defendant for its own convenience, as is shown by the plaintiff's testimony.

No one could presume from anything that appears in the case that any employe of the defendant left this switch open with the intent of injuring the plaintiff's intestate, A. I). Woolwine. On the contrary, it appears that said Woolwine did not come to said telegraph office for more than an hour after the tunnel train ran in on the side track, and said switch was accidentally left open by Joe Town, whose duty it was to close it after said tunnel train came on to the siding.

No one appears to have been aware of said Woolwine's intention to visit said telegraph office, and, if they had, it does not appear that any employe of the defendant had any ill feeling or spite against said Woolwine; and we can not say that any person so employed would intentionally wreck two trains and demolish the telegraph office for the purpose of injuring Wool wine. Morover, no one could possibly have foreseen that the freight train, by leaving the main track, and running out on this siding, would have thrown the tunnel cars against the telegraph office, which stood seven feet from the side track, and knocked it down the river bank and into the river. This, however, appears to have been one of the possibilities.

The evidence in the case shows that said Woolwine was fully acquainted with the telegraph office and its surroundings, as he had during the previous year been employed for a week as operator in said office by said Bryant.

Counsel for the plaintiff in error, in their brief, assert that "the general principle is that trespassers and licensees going upon the premises of another take the premises as they find them, and run such risks as are incident to the existing condition of such premises, and therefore can not complain of their needing repairs, and can not recover for injuries resulting from the condition in which they find the premises; but the distinction is that they can recover for injuries resulting from the subsequent actual negligence of the defendant while the licensee is on the premises." This, we believe, states correctly the law where parties go upon the premises of another under the circumstances that Woolwine did in this case.

If we apply this law to the facts of this case, we find that the switch was open when lie went to the telegraph office, and so remained for an hour and twenty minutes before the accident happened; and Woolwine had been in the office about twenty five minutes when the collision occurred. There was no change in the switch after the arrival of said Woolwine, and lie took upon himself the risk of the premises in the condition he found them.

We may next inquire whether the circumstances of this case are such as to entitle the plaintiff to complain of a breach of duty on the part of the defendant towards his intestate. 1 Shear. & R, Neg. § 316, under the head of "Who may complain of a breach of duty," says: "The plaintiff must show a breach of some duty owing to him, or which was imposed for his benefit." It is not every one who sustains an injury by reason of some act or omission on the part of an employe of a railroad company that entitles a person injured by reason thereof to demand and recover damages from said company by reason thereof. See Bish. Xon-cont. Law, § 446; People v. Fairchild, 67 X. Y. 336.

We find that 1 Shear. & R. Xeg. § 97, says: "The injury which a...