Young v. Sulphur

• Decision Date: 20 May 1924
• Citation: 96 W.Va. 534
• Court: West Virginia Supreme Court
• Parties: R. I. Young, Administrator, v. White Sulphur andHuntersville Railroad Company

96 W.Va. 534

R. I. Young, Administrator,

v.White Sulphur andHuntersville Railroad Company

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1924.

Decided May 20, 1924.

1. Railroads Care Required of Automobile Passenger.

While the negligence of the driver of an automobile can not be imputed to a mere passenger, the latter must use such care for his own safety as an ordinarily prudent person would exercise under like circums'tances. (p. 536).

2. Same Contributory Negligence of Automobile Passenger Question for Jury.

Whether a passenger riding in an automobile driven by another exercises such care for his own safety as a reasonably prudent person would take under like circumstances, is generally a question of fact for the jury. (p. 539).

Error to Circuit Court, Greenbrier County.

Action by R. I. Young, administrator, against the White Sulphur & Huntersville Railroad Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

G. Gilmer Easley and Chas. 8. Dice, for plaintiff in error. George A. Bevercomb, and 0. B. Harvey, for defendant in error.

Miller, Judge:

Plaintiff brought this suit as administrator of the estate of his deceased wife, Mrs. Bettie E. Young, to recover damages for injuries sustained by her, which resulted in her death. At the close of plaintiff's evidence the defendant moved the court to exclude the evidence and direct a verdict for it, and after verdict moved for judgment non obstante verdicto, which motions were overruled. The verdict for the plaintiff was for $2,500.00. From a judgment entered on the verdict of the jury defendant has appealed.

From the evidence it appears that Mrs. Young was a passenger in the automobile of one Elmer Lynch, who made regular trips between Neola, the place where the accident occurred, and White Sulphur Springs, carrying the United States mails, as well as passengers for hire. She was in the rear seat holding in her arms a child two years of age; next to her was her daughter, fifteen years of age; and on the extreme left of the seat another young lady. The automobile was moving westward along the street or road which passed, at the crossing, very near to defendant's station house or depot. The train which struck the automobile, composed of an engine and tender, two freight cars, and a passenger coach, was proceeding northward, passing close to the west side of the depot, the engine at the front of the train, but running backwards. The engineer was on the opposite side of the engine from the approaching automobile, and says he was looking forward along the track, but did not see the automobile until he heard, a noise, which he thought was caused by the tender jumping the track, when he applied the brakes and stopped the train about 67 feet from the crossing. The fireman on the engine, at the time of the accident, was looking backwards to see if the conductor was going to give a signal to stop at the station. The train was moving about seven or eight miles an hour.

There is no doubt that the defendant was negligent. All the evidence, including the testimony of the engineer, is that no whistle was blown or bell rung at the crossing, and it appears that there was no signboard as required by the statute.

It is admitted that the negligence of the driver of the automobile, if he was negligent, can not be imputed to plaintiff's intestate. The main ground relied on by defendant for reversal of the judgment below is that Mrs. Young was, as a matter of law, guilty of contributory negligence in failing to observe the approach of the train and to warn the driver of the danger.

It is undoubtedly the law that a passenger riding in an automobile with another must exercise reasonable or ordinary care to avoid injury, such care as an ordinarily prudent person would exercise under like circumstances. Sherman and Redfield on Negligence, (6th ed.), § 66a, note; Huddy on Automobiles, (6th ed.), § 688, and cases cited; Brubaker] v. Iowa City, (Wis.), 18 A. L. R., note p. 309, and the numerous cases there cited and reviewed.

Can it be said in this case as a matter of law that Mrs. Young did not exercise ordinary care At the time of the accident the automobile was proceeding slowly, in second gear. Occupying alone the front seat of the car, the driver was in a much better position to see the danger than was Mrs. Young, who wTas in the rear seat with two other adult passengers and a small child, the latter in her arms. Though she might have seen the train before the automobile reached the point where a view of the railroad was cut off by the station house, there was yet sixty feet between that point and the crossing. Lynch had been carrying the mail on this route for three years. Whether this fact was known to Mrs. Young does not appear, but the fact that he was carrying the mail between the two towns would be notice to her that he was familiar with the road over which they were to travel. We can not say that a passenger would be charged with the duty of warning the driver that he was approaching a railroad crossing, or that a train was coming on the track, until it was seen that he either was unaware of the presence of the train, or seeing it, took no notice thereof or proceeded carelessly, indifferently or recklessly into danger. While a passenger can not passively sit still and close his eyes to obvious dangers, in the absence of unusual circumstances, he is under no duty to direct the conduct of the driver, when he has no control over the latter. Plaintiff's intestate in this case could not anticipate that the driver would carelessly or recklessly enter upon the railroad crossing immediately in front of the passing train, when he was moving at a rate of speed that would have enabled him to stop within a few feet; and when the imminent danger became apparent, which must have been seen by the driver before Mrs. Young could discover it, there was only time for the driver to act. In Hermann v. Rhode Island Co., 36 R. I. 447, it is said: "It...