Payne v. Railway Co. , 131 W. Va. 767 ( 1948 )

I agree that in a personal injury case when the defense of contributory negligence is recognized in submission to a jury a binding instruction on behalf of the plaintiff which fails to plainly and expressly negative that defense it is reversible error. Consequently, I do not dissent from the first point in this case.

However, I do not otherwise agree with the conclusions of the majority nor with its discussion of the status of an outsider who habitually uses, along with others, the tracks of a railroad at a given point as a walkway. Under our West Virginia cases, although he is usually termed a trespasser, the principles applicable to ordinary trespass are certainly not applied consistently. To my mind our cases are in well nigh hopeless conflict and concern a more or less involved history which is not always directly relevant.

The Court, in Dickinson v. New River Pocahontas Consol.Coal Company, 76 W. Va. 148, 85 S.E. 71, after declaring that infants stand upon the same footing as adults as trespassers, had this to say:

"From the operation of this general rule, no class of property owners other than railroad companies has been excepted, and it was extremely difficult to find any principle upon which they could be taken out of it, to the extent of requiring them to keep a reasonable lookout for trespassers and licensees on their tracks at places other than public crossings. This has been done, however, and, in justification of the court's action in doing so, Judge BRANNON said in Gunn v. Railroad Co., 42 W. Va. 676, 680: 'The public interest and necessity, not merely the company's, demand that the company have sole possession of its track; but, as people live and move along the route, they do go upon the track; children in their thoughtlessness often wander upon it; and sheer necessity calls for such care as is exacted by the rule.' Judge HOLT'S observation upon the same subject, in Gunn v. Railroad Co., 36 W. Va. 165, 175, is in part as follows: 'Again, that some one shall always be on the lookout on a running train is, from its nature and as shown by experience, one of the most important safeguards; indispensable, in fact, for the passenger on the going train as well as the passenger on the coming train — for those off, as well as those on the train. The enforcement of such lookout is so imperative, on the ground of public policy, that the law may impose it as a duty, due to one who may himself be in the wrong.' This denial to railroad companies of the immunity accorded by law to other property owners and imposition upon them of duties toward trespassers and bare licensees, to which other property owners are not subjected, are clearly based upon the peculiarities of their property, their methods of business and their relation to the public. Whether these facts, circumstances and considerations justify the discrimination, we need not inquire, it suffices to show that railroad companies, as property owners, have been put in a class distinctively their own."

The case of Gunn v. Ohio River Railroad Company, 42 W. Va. 676,26 S.E. 546, laid down this rule in the third syllabus:

"The engineer and fireman of a railroad train must keep a careful lookout on the track ahead to discover persons and animals upon it, and use ordinary care to avoid injury to them."

The reason that persons and animals were placed in the same category in the Gunn syllabus was because in Blaine v. C. O.Railroad Company, 9 W. Va. 252, recovery of the value of a horse killed by a train on the railroad track was approved. In the Blaine opinion will be found a discussion of the common law rule requiring that horses and stock be restrained by their owner and of the fact that before the creation of West Virginia the Commonwealth of Virginia had by statute abolished that rule and had provided in effect that the owners of land desiring to protect it should fence and that otherwise animals upon it would not be regarded as trespassing but as being upon common property, which they had a right to be. The open range upon unfenced property became the law in West Virginia, later made subject to local option in magisterial districts and now abolished by statute.

It will be noted that the Blaine case conferred upon animals a higher right to the use of the property of another than that of ordinary trespassers.

To the same effect as the Gunn case are the following cases:McGuire v. Norfolk W. Railroad Company, 70 W. Va. 538,74 S.E. 859; Stuck v. Kanawha M. Railroad Company, 78 W. Va. 490,89 S.E. 280; Stuck v. Kanawha M. Railroad Company,76 W. Va. 453, 86 S.E. 13; Nuzum v. Pittsburgh, C. St. L.Railroad Company, 30 W. Va. 228, 4 S.E. 242, and other cases recognizing the same principle though not directly in point.

It is true that the case of Huff v. Chesapeake OhioRailway, 48 W. Va. 45, 35 S.E. 866, discusses a railroad track as being a warning of great danger and a railroad yard as involving a greater hazard. However, the same judge who wrote the opinion in the Huff case had this to say in the Gunn case at page 680:

"* * * The law is clear that those in charge of a train must, by keeping up a reasonable lookout, use fairly ordinary care to discover animals and persons on the track, both to save them and passengers from injury. The public interest and necessity, not merely the company's, demand that the company have sole possession of its track; but, as people live and move along the route, they do go upon the tracks; children, in their thoughtlessness and indiscretion, will go upon it; stock will wander upon it; and sheer necessity calls for such care as is exacted by this rule. Gunn v. Railroad Co., 36 W. Va. 165 (14 S.E. 465); 2 Wood, Ry. Law, § 320; opinions in Raines v. Railroad Co., 39 W. Va. 50 (19 S.E. 565). Some courts hold that no duty lies on the company to look ahead for persons on the track, as it has exclusive right to its track except at crossings, and they are trespassers; but we have held that there must be a lookout even for live stock and ordinary care to prevent injury to it. Layne v. Railroad Co., 35 W. Va. 438 (14 S.E. 123) and cases. And, certainly, the same care would be required so far as infants, deaf and other disabled persons are concerned, if not as to others. * * *."

In this jurisdiction railroads are undoubtedy charged with the duty of maintaining a reasonable lookout for trespassers upon their tracks. Cases so holding can be easily located by turning to Michie's Digest "Railroads" § 62. See also §§ 71 74. Certainly that is a much higher duty than that stated in the majority opinion to merely abstain from wanton or willful injury.

It may, therefore, be conceded that the defendant owed the plaintiff no higher duty than that it owed a trespasser, as is stated in the majority opinion. But that does not resolve the question presented by this record. That question is: did the defendant maintain a reasonable lookout, consistent with the other duties of its train crew, upon the train the operation of which caused the death of plaintiff's decedent? That, in my opinion, was a question for the jury and on it its verdict should not be disturbed.

The first syllabus in Prok, Adm'r. v. N. W. RailwayCompany, 75 W. Va. 697, 84 S.E. 568, reads as follows:

"Whether it is negligence on the part of a railroad company, to run an engine or train of cars backwards, through a village, without some person on the tender or foremost car, to keep a lookout for persons who may happen to be on the track and take precautions against injury to them, generally depends upon the circumstances of the particular case, and is a question for jury determination." (Italics supplied.)

True, in the Prok case, the plaintiff's decedent was an infant, but since infants and adults have the same status in so far as being trespassers is concerned, and the law requiring a reasonable lookout consistent with other duties applies to both, in principle if not in sentiment, infancy does not alter the rule.

The testimony conflicts concerning the ringing of the bell and the sounding of the whistle of the locomotive and also as to lights on the exposed end of the caboose, the witnesses for the defendant stating its two "marker lights" which shone red in the direction in which it was moving and an ordinary oil lantern on its platform were lighted. No witness for the defendant states that the track was illuminated in any manner. To the contrary, H. E. Williams says that he was on the platform of the caboose with an ordinary electric hand light, saw the Fosters and Coleman, shouted at them, and undertook to signal the engineer with his flashlight. He says that this occurred "too late". The defendants' witnesses agree that although the engine's rear headlight was burning, it threw no light on the track ahead on account of the blocking caboose. The equipment on the platform of the caboose intended for use in applying the brakes when backing and as a means of a danger warning to persons on the track and to the engineer was out of order. I cannot understand how a reasonable lookout consistent with their other duties could be maintained by the defendant's employees when on an unlighted track, nor how the railroad can contend that it exercised proper care for the safety of trespassers when discovered, if its equipment intended to insure their safety had been permitted to become unworkable. Furthermore, there is evidence, including that of a wooden footbridge from about the middle of the yard across the creek to the main highway, from which a jury might conclude that decedent was an "implied invitee". See Barron v. Baltimore O. R. Co., 116 W. Va. 21,178 S.E. 277. What I have stated as to the proof is taken from the majority opinion and I believe clearly shows that, coupling the admitted facts with the conflicting testimony, the issue was properly submitted to the jury and that its finding should not be disturbed on the ground that the plaintiff has failed to make a case.

I am authorized to state that Judge Riley joins in this concurrence.