Arrowood v. Railway Co. , 127 W. Va. 310 ( 1944 )

I am unable to concur in a reversal of this case. The decedent would seem clearly to have been guilty of contributory or concurring negligence, as a matter of law, by which any right of recovery by reason of his death is legally barred. The principles of law upon which this conclusion rests are perfectly familiar and thoroughly established by previous decisions of this Court.

It is conceded that the plaintiff, by the testimony of witnesses to the effect that no whistle was blown or bell rung as the train approached the crossing where the accident occurred, made out a prima facie showing of primary negligence against the defendant.

It is also true, of course, that the question of contributory negligence, in railroad crossing accidents, as in all others where there is conflict of evidence, or where the evidence presents facts from which different conclusions might be legally drawn, must be submitted to a jury. But it has also been held by this Court in a multitude of cases, involving accidents at railroad crossings, that the evidence may be such as to establish contributory or concurrent negligence as a matter of law against the party injured, and thus to require from the court a directed verdict in favor of the defendant.Casto v. Charleston Transit Company, 120 W. Va. 676,200 S.E. 841; Lester v. Norfolk Western Railway Co., 111 W. Va. 605,163 S.E. 434; Gulf Transportation Company v. Virginian RailwayCompany, 111 W. Va. 544, 163 S.E. 7; Maynard v. Chesapeake Ohio Railway Company, 111 W. Va. 372, 162 S.E. 171; Martin v.Norfolk Western Railway Company, 111 W. Va. 281,161 S.E. 446; Jackson v. The Chesapeake Ohio RailwayCompany, 110 W. Va. 568,159 S.E. 517; McKinney v. The Virginian RailwayCompany, 105 W. Va. 319, 142 S.E. 442; Gray v. N. W. RailwayCompany, 99 W. Va. 575, 130 S.E. 139; Krodel v. Baltimore Ohio Railroad Company, 99 W. Va. 374, 128 S.E. 824; Cavendish v. Chesapeake Ohio Railway Company, 95 W. Va. 490,121 S.E. 498; Cline v. McAdoo, 85 W. Va. 524, 102 S.E. 218;Bassford v. Pittsburgh, C., C. St. L. Ry. Co., 70 W. Va. 280,73 S.E. 926; Butcher v. West Virginia P. R. Co., 37 W. Va. 180,16 S.E. 457. And contributory negligence may be shown sufficiently by the plaintiff's evidence to defeat recovery.Browning v. Tolley, 111 W. Va. 548, 163 S.E. 10.

It is the duty of a motorist or other person making use of a railroad crossing to exercise reasonable care for his own safety by making proper observation to discover approaching trains. Casto v. Charleston Transit Company, supra; Lester v.Norfolk Western Railway Company, supra; Robertson v.Monongahela Power Railway Company, 99 W. Va. 356,128 S.E. 829; Jameson v. Norfolk Western Railway Company, 97 W. Va. 119, 124 S.E. 491; Buchanan v.Norfolk Western Ry. Co., 99 W. Va. 326, 128 S.E. 652;Cavendish v. Chesapeake Ohio Railway Company, supra; Bonar v.Baltimore Ohio Railroad Company, 91 W. Va. 462, 113 S.E. 766;Robinson v. Chesapeake Ohio Railway Company, 90 W. Va. 411,110 S.E. 870; Cline v. McAdoo, supra; and Bassford v.Pittsburgh, C., C. St. L. Ry. Co., supra.

The precautions to be taken by one using a railroad crossing must not be merely perfunctory or simply gestures. In pretending to look out for approaching trains, the looking and listening must be actual and effective and from a position where they can be effective. Casto v. Charleston TransitCompany, supra; Yoder v. Charleston Transit Company, 119 W. Va. 61,192 S.E. 349; Gulf Transportation Company v. VirginianRailway Company, supra; Maynard v. Chesapeake Ohio RailwayCompany, supra; Jackson v. The Chesapeake Ohio RailwayCompany, supra; Krodel v. Baltimore Ohio Railroad Company,supra; Robertson v. Monongahela Power Railway Company, supra;Gray v. N. W. Railway Company, supra; Robinson v. Chesapeake Ohio Railway Company, supra; Riedel v. Wheeling TractionCompany, 63 W. Va. 522, 61 S.E. 821.

The duty to exercise care at a railroad crossing cannot be cast wholly upon the railroad company, but is one devolving equally upon the motorist or other person making use of the crossing. Carnefix v. Kanawha Michigan Railroad Co., 73 W. Va. 534,82 S.E. 219; Berkeley v. Chesapeake Ohio RailwayCompany, 43 W. Va. 11, 26 S.E. 349; Beyel v. Newport News M.V. Railroad Company, 34 W. Va. 538, 12 S.E. 532.

Nor is one making use of a railroad crossing excused from exercising care for his own safety by the fact that certain obstructions, total or partial, interfere with his view or hearing. On the contrary, the presence of such an obstruction requires greater effort and vigilance on his part. GulfTransportation Company v. Virginian Railway Company, supra;Gray v. N. W. Railway Company, supra; Robertson v. Monongahela Power Railway Company, supra;Cavendish v. Chesapeake Ohio Railway Company, supra; Robinson v. Chesapeake Ohio Railway Company, supra; Berkeley v.Chesapeake Ohio Railway Company, supra.

These principles, long established and not questioned, and directly applicable to the undisputed facts in evidence, would seem to decide this case. The railroad track was practically straight for a distance of more than twelve hundred feet, or almost a quarter of a mile, from the crossing in the direction from which the train approached. The view, by the decedent, as he drove toward the railroad track, was clear for about ninety-eight feet, except that at a point thirty-eight feet from the center of the first track there intervened between him and the approaching train two concrete pillars, in height only three and one-half to four feet above the level of the tracks and which are said to have interfered with his vision for a distance of eighteen feet. How these pillars could wholly cut off his view of the train does not appear, but, for the purpose of the questions here involved, it may be assumed, though not proved, that the obstruction of decedent's view was total. The decedent then had, without question, a full and complete view of the train from the time he passed these pillars until he was struck. The pile of ballast forty-two inches high is not claimed to have been an additional obstruction. It could not have been. After emerging from the pillars he had a full thirty feet before being in danger; or, stated in the aggregate, the decedent had a clear and unobstructed view of the approaching train while he traveled a distance of at least ninety-eight feet, less the eighteen feet where the pillars are assumed to have intervened. He should have seen the train before reaching the pillars. What he could have seen he is charged in law with having seen. He was perfectly familiar with the crossing. He clearly realized his duty to look and listen, else why would he stop before crossing? He could have seen the train from the point where he stopped. From a legal standpoint, he did see what he could have seen. Nevertheless, he drove on. What matters it that the pillars obstructed wholly or partially his view for eighteen feet as he approached the crossing? He is legally charged with the knowledge that the train was approaching. Or even if he did not see or could not have seen the train until he cleared the pillars, the case is no better. Obstructions do not excuse care on the part of the traveler; on the contrary, they exact greater precautions. One darting from the concealment of a standing automobile into the proper way of another moving car is always held contributorily negligent. How is a motorist emerging from behind an obstruction, complete or partial, onto a track upon which a train is approaching, less chargeable with lack of care? The decedent had thirty feet of perfectly clear view after passing the pillars. In that space he could not have avoided seeing the train, or, at least, its flood light falling on the ground before him. He could have stopped his car. If his speed was too great to permit of stopping, that alone would have been negligence on his part. He could not ignore nor neglect this last perfect and completely adequate opportunity to observe his danger and then be held to have exercised due care.

It is true, of course, that the decedent had the right to assume the trainmen would not approach the railroad crossing without giving the statutory warning signals, but this does not mean that he could cast all care on the trainmen. They also had the right to assume that he would not drive onto the track in plain view of the rapidly approaching train. The duty of the trainmen and of the decedent using the crossing was mutual and reciprocal, but the train had the right-of-way. It could not stop for him; he could, and was legally required to, yield the way to the train. Each failed in the duty required. The negligence of the decedent clearly contributed and concurred to produce the fatal result. Hence no cause of action arose.

Judge Fox joins in this opinion.