Raines v. Chesapeake & O. R'y Co.

Holt, Judge:

1. This is an action of trespass on the case, brought in the Circuit Court of Kanawha county in February, 1892, by Maggie Raines, administratrix, against the Chesapeake & Ohio Railway Company for negligently .causing the death of her husband and intestate, John B. Raines, which suit resulted in a judgment for defendant, from which she has obtained this writ of error.

The declaration contains two counts,both good; and the demurrer of defendant was therefore properly overruled. The issue was joined on the plea of not guilty. A jury was impanelled and sworn, and having heard the evidence of plaintiff in full the court on motion of defendant struck out plaintiff’s evidence; and the jury by direction of the court returned a verdict for defendant. The plaintiff excepted to the ruling of the court excluding her evidence and moved the court to set aside the verdict and grant her a new trial; but the court overruled the motion and gave judgment and certified the evidence, as required by our present statute. Code 1891, p. 834, c. 131. s. 9.

Seven witnesses were examined on behalf of plaintiff, none for defendant, and the facts are, in substance, as follows:

The town of Montgomery, where the accident happened, contains from one thousand five hundred to two thousand people; is about one mile long on each side of defendant’s railway, where the company has a station, a yard for storing cars and five tracks running from the station west to the lower end of the town, with spaces between wide enough to put a footman out of danger, and a county road running along nearby on either side — the one on the south side at a distance of about one hundred and fifty yards. The one on the north side of the tracks is quite close, and is the main street of the town, being about fifty feet from the track, where Raines was killed. The track is straight there, and the footman on it could be seen for a long distance by the train going east. No houses were near the *55 track where Raines was killed. Adjoining the town above and below are the coal valley, and coal mines; and for some fifteen years or more footmen have been accustomed to use the track and travel along it without objection, it being often thus used in dry weather as well as when it is muddy.

On September 25,1891, about five o’clock in the evening, Eo. 2, the east-bound passenger mail train, with four or five carsbeing on schedule time and running at its usual speed— at about twenty miles per hour at that point' — -came in sight and hearing at the lower or west end of the town, blowing one prolonged whistle for the crossing, and one for the station. As it entered the railway yard at the west end, the steam was shut off, and it ran on at a speed of fifteen or twenty miles per hour by its previous momentum.

Raines, the decedent, was walking slowly on the main track in the railway yard about two hundred yards east of the lower or western limit of the town, and four hundred or five hundred yards west of the station, about six hundred yards above Morris creek bridge, two hundred yards above a crossing at the lower end of the town^with _hig..baek to-' wards the coming train, usd á paper in bis hand, as though he were reading or looking at it. When the coming train got within twenty or thirty feet, or some other short dis- ■ tance, the ’engineer blew the alarm — four or five quick whistles — put on brakes and steam, reversed the engine, and at once did all he could to save him. “The engine Checked considerably,” but passed on about a length of the ■'train before stopping hut struck and killed Raines, who was walking in front towards the depot.

“The fact, that pedestrains are accustomed to travel on a railroad track at a particular place makes it the duty of the servants of the company to exercise greater caution and prudence in the operation of its road at that place.” Nuzum v. Railway Co., 30 W. Va. 228 (4 S. E. 242.) This point of law arose out of the following facts: The servants of a railway company having in charge one of its engines and trains running within the corporate limits of Wheeling, to and over a public wharf therein, failed or neglected to give notice, at least sixty rods before its approach to the *56 wharf, by ringing the hell or blowing the whistle of the locomotive for a sufficient time to give notice of its approach thereto. It was in fact what is called, a “flying switch” of the freight train, which ran down and killed the deceased on the track. And the court in the same case further holds: “If such company permit a train of its cars to be moved at that place without having some of its servants in position to give warning of its approach and to control its movements, these facts are of themselves acts of negligence.” Id. “A person using a railway track as a footpath for his own convenience elsewhere than at a lawful crossing, and is injured while so doing, can not recover damages of the railway company unless it be guilty of wanton or gross negligence.” Spicer v. Railway Co., 34 W. Va. 514 (12 S. E. Rep. 553).

A railway company running its train is bound for the safety of such.train to keep a reasonable lookout for trespassers on its track, and is bound to exercise such care, as the circumstances .require, to prevent injury to such trespasser; but, having given the signal required by law, it has "a fighVto-pr^SUmeJdiat thg. trespasser, if apparantly a capable person, will use his seuses anti seasonably remove himself from danger — that he can and will protect himself— so it need not diminish its lawful speed, and if the employes of the company omit no duty after becoming aware of his peril the company will not be responsible for a resulting injury ; but if the employes know him to be deaf or helplessly drunk or otherwise specially in danger, or if the person be a child too young to appreciate or avoid the danger, if they then neglect to give a reasonable warning, and keep on and inflict damage, the company will be responsible for an injury to such trespasser if it be guilty of willful or wanton or gross negligence. See Spicer v. Railway Co., 34 W. Va. 514 (12 S. E. Rep. 553;) Bish. Non-Cont. Law, § 1037; Railroad Co. v. Sherman, 30 Gratt. 602-629; Railroad Co v. Harman’s Adm’r, 83 Va. 554 (8 S. E. Rep. 251) citing with approval 2 Wood, Ry. Law, 1267. See 2 Wood, R. R. Minor’s Ed. 1894) § 320.

Trespassers on railroad tracks are of various kinds differing in the character of the trespasser, as one having his *57 full senses, one deaf or blind; differing in intent, as intentional or accidental; differing in place or in time or in other material circumstances, as being at a remóte place where the trespass is not to be anticipated, or in cities or towns or at other thronged places, where they occur as of course, sometimes under allurements which the road itself has held out, or with its silence, amounting to a quasi consent, if the trespasser is willing to take the risks, but creating no right in the public to so use it, and creating thereby no obligation of special care or protection other than what the special circumstances may require.

It has long been settled as a qualification of the general rule making contributory negligence a bar in defence, that the contributory negligence of the party injured will not defeat the action, if it appear, that the defendant might by the exercise of reasonable care and prudence on his part have avoided injuring the plaintiff, notwithstanding the plaintiff’s own contributory negligence; and, asa corailary, the same doctrine has been applied in cases of trespass. Both are but applications of the common-law doctrine, that every one must so conduct himself and so use his own, as not to injure another. Hence, “if those running a train discover a trespasser in danger, they must use all reasonable care and all reasonable exertions, to avoid inflicting injury and to avert from him the impending harm, or the road will be responsible for whatever injury follows.” See Bish. Non-Cont. Law, § 1036, and cases cited.

In Butterfield v. Forrester (1809) 11 East side p. 60, Lord Ellenbo'rough, C. J., says, delivering the opinion : “A party is not to cast himself upon an obstruction, which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to he in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorize another purposely to ride up against them. One person being in fault will not dispense with another’s using ordinary care for himself” — which is a statement of the rule by giving an illustration, and impliedly of the principal which underlies it.

The locomotive-engineer sounded the whistle for the *58 crossing just at the lower end of the town, and for the station in the town about one hundred and fifty yards below where Raines was killed. The train was on schedule-time running on the main track at the usual speed. Whether the engineer saw Raines on the track or not there is no direct evidence; but as this case is presented, we may presume that in such a place, the engineer and fireman being on the lookout for the safety of the train, if not for his safety, did see him, for the track was straight for three fourths of a mile! To all appearances he was an adult man capable of using his senses, and they had a right to suppose that he would in proper time get off the track out of danger — that he would reasonably-step aside — so that they are not called upon to and need not stop the train or diminish its speed. This seems to me to be the plain dictate of common sense. I do not see what other fair rule could be adopted; and it is supported by all the authorities without exception, as far as I have been able to examine them.

That Raines had at the same time a paper in his hand looking at it, or reading it; holding it in front of him, was not likely to be noticed by the engineer, or, if noticed, was of no special significance; and, when they came near enough to see that the man might not be aware of his danger, then they did all that could be done to notify and alarm him, and to stop the train, but to no purpose; and this might readily happen under such circumstances without any want of proper care on their part. Witnesses at some distance from the track speak of’the quickly repeated alarm whistle being blown when the train was within a distance of twenty or thirty feet, the air brakes being put on, and the engine reversed, and the “engine considerably checked.”

There is in every case a preliminary question for the judge to determine, and that is, assuming the truth of the testimony and all the inferences that can be fairly drawn from it, would the jury as reasonable men be justified in finding a verdict for the party on whom rests the burden of proof? Would the verdict be against the law ? That is, would a verdict for plaintiff be against the law of the case on the facts proved ? Would the verdict be wholly without proof of some essential fact ? Or is the evidence plainly *59 insufficentto warrant the finding of a verdict for tlie plaintiff ?

There are certain physical facts, which are to my mind conclusive that the statement, that Raines was only twenty or thirty feet ahead of the train, when the engineer commenced to blow the alarm whistle and stop the train, is only amere conjecture, meaning only that the distance was very short.

Five witnesses saw it. • The first one was three hundred yards away. The train could go twenty feet while the sound of the whistle was reaching him. They whistled three or four times:

"Witness No. 2 on this point was about one hundred yards away. He saw the train running at its usual speed at that place — fifteen or twenty miles an hour — with four or five cars. When within twenty feet of Raines the engineer sounded the alarm whistle four or five times, put on the brakes, reversed the engine, and checked it considerably before it struck the man. The engineer did all he could to save him, but Raines was too close. The train ran on sixty five steps — one hundred and ninety five feet — beyond the place where Raines was struck before it stopped. He blew the whistle, turned on the air-brakes, and reversed the engine before it struck him, and then went sixty five steps.

Witness No. 3 was one hundred and twenty feet away. Heard the whistle. Turned his head immediately, and looked towards the train, and saw the man going over about four times. He gives no distance except that measured by the time of turning his head after he heard the whistle. In all likelihood the air-brake was put on and the engine reversed first.

Witness No. 4 gives no distance except that it'was short —so short that Raines could not escape. This witness was but a short distance away. She is the one who speaks of Raines having a paper in his hand, but refused absolutely to say whether it was large or small.

Witness No. 5 was about one hundred yards away. Heard the whistle blow three or four times in quick succession, which attracted his attention to it. Raines was a very short distance from the train ; can not make it more defi *60 nite. He saw nothing in Ms hand. His head was down. He looked something like a drunken man. He saw him walking on the track after the train whistled.

All this means that he was too close for the train to be stopped before it would strike him. As to anything like the accurate distance, this evidence, as a whole, leaves it uncertain. The train was going fifty or sixty feet in three seconds. It is not at all probable that Raines was only twenty feet ahead of the train, when they commenced applying the air-brakes, reversing the engine, and blowing the alarm. Raines had lived at that place at least three years. The train was on schedule time, running through the train yard at its usual rate of speed. There were safe walking ways on either side. He had but to step right or left to be out of danger. He was possessed of sight and hearingnothing unusual in his appearance. The prolonged whistle had sounded twice a short distance below — once for a crossing, and once for the depot. The engineer had a right to presume that he would seasonably step out of danger, and not until he got quite close did he become aware that the man was insensible of his peril. Then he did all he could to save him, but to no purpose; he was too close.

I know of no rule, and can find no case, making it the duty of the engineer, under such circumstances, not to approach a man walking on the track nearer than the distance within which the train can be stopped — say two hundred feet in this case. See Railroad Co. v. Miller, 25 Mich. 279; 2 Wood, R. R, (Minor’s Ed. 1894) § 820, p. 1465. Under such circumstances, to exact of the engineer nice estimates of distance, based on the supposition that the man walking on the track may not be sensible of his danger, and will not step off, seems to me to be unreasonable.

The action of the court in striking out the evidence has been held to be an indirect mode of directing the jury to return a verdict for the defendant, the plaintiff not being willing to suffer a nonsuit. Here it was accompained by an express direction to return a verdict for defendant. I can discover but the one question involved. Does the evidence tend, in any fairly appreciable degree, to make out plaintiff’s case ? I am of opinion that it does not; that *61 the accident was what is termed in law an “inevitable accident;” and, although the question of negligence is generally one of fact for the jury, yet, “when the facts are such that all reasonable men must draw the same conclusion from them, then it becomes a question of law for the court.” See Railway Co. v. Ives (U. S.; Oct. Term, 1891) 12 Sup. Ct. 679, and cases cited. There is no room for two fair-minded, reasonable opinions about it. See Corcoran v. Railway Co., 105 Mo. 899 (16 S. W. Rep. 411). The evidence in this case is plainly insufficient to warrant the finding of a verdict for the plaintiff, and the court could not have hesitated to set it aside. See Grayson’s Case, 6 Gratt. 721-724. Judgment affirmed.