Vest v. Chesapeake & Ohio Railway Co.

This action involves the duty of a railroad company to small children, who, at a certain place, habitually boarded a slowly moving freight train. A path used by school children crossed a railroad track about one thousand feet below a water column. The plaintiff, aged six years, and other small children were returning home from school along that path on October 23, 1935. They arrived at the track coincident with the arrival of the train in question. Since it was stopping at the water column, its rate of speed at the path was just a few miles per hour. The plaintiff and several of his companions climbed on the train. He fell off and suffered practically the complete loss of an arm and a leg. For those injuries, he recovered herein a judgment of $50,000.00. The train in question stopped at the water column daily between three and four o'clock P. M. During the school months, the train usually arrived when the children were on the path returning home from school. A number of witnesses testified without contradiction that during the school months for several years before plaintiff was injured, it was the constant practice of the school children to board that train and ride until it stopped at the water column. A witness who had lived in sight of the track for about four years said: "Ever since I lived over there the children always got on the train; the train pulled up slow, and they would get on the train and ride it. I could hear them playing along and riding the train; I don't know how many times; about every evening because I got in the practice of watching those children." Another witness who lived close to the track testified that *Page 459 practically every school day, she saw some of the school children, ranging in size from big girls to "just little tots" hop the train; and that they would do so at times in the presence of the train crew, whom she never heard make any objection. One school boy, aged thirteen years, who participated in the practice, testified that the school children "from the primer on up would * * * grab the train and just make a play toy of it, and the brakemen see them and just say `Hello'." Another boy, also aged thirteen, who had participated in the practice for about four years prior to plaintiff's injury, testified that the school children habitually boarded the train without objection from the train crew and that on one occasion when three boys were jumping on and off the train, a brakeman said to them: "If you are going to ride the train get on and ride and quit hopping on and off." The train crew consisted of the engineer, fireman, conductor and two brakemen, all of whom were used as witnesses by defendant. The engineer said he did not see the children on the day plaintiff was injured; but was not questioned as to thepractice of the children to board the train. The fireman testified that he did not see the children on that day and did not know of the practice. Neither the conductor nor thebrakemen were questioned as to seeing the children prior to theaccident or as to the practice. The fireman's ignorance, alone, cannot overcome the positive and detailed evidence of plaintiff's witnesses regarding the practice. It must be taken as fully proven, and as knowingly permitted, if not actually invited by the conductor and the brakemen. The defendant tried the case on the theory that none of the train crew saw the plaintiff; that he was a trespasser; and that in the absence of actual knowledge of his danger, they owed him no duty. That theory was based on Angeline v. Ry. Co.,99 W. Va. 85, 128 S.E. 275, 43 A.L.R. 34, which does hold that a railroad company owed no duty to a trespassing child except to refrain from knowingly injuring him, and that it is not the duty of a train crew to police the cars when in motion to prevent *Page 460 children from jumping on the train. That holding, however, must be limited to cases factually similar to that case. There a child, after being warned by a brakeman not to ride a train, attempted to board the train surreptitiously and was injured. There a lone trespass was involved. Here, boarding the train was habitual and was done under the eyes and with the tacit permission of the train crew. Hence, the controlling facts in the two cases are dissimilar. The Angeline case is reported in 43 A.L.R. 34, and is supported by an extensive annotation commencing on p. 38. An examination of the cases annotated fails to discover a single one with facts closely analogous to those of the instant case. Defendant has cited only two cases from the annotation,Swartwood's Guardian v. Louisville N. R. Co., 129 Ky. 247,111 S.W. 305, 19 L.R.A. (N.S.) 1112, and Louisville N. R.Co. v. Bennett's Adm'r., 207 Ky. 498, 269 S.W. 549, both from Kentucky. In the Swartwood case, the court said of the attempts of children to board the train: "It is true it is known that such trespasses are probable; but they are sporadic." In theBennett case, the decedent was approximately fourteen years old, and the opinion of the court was based on the duty of the train crew to boys of that age in contradistinction to the duty to children of tender years. Here, the facts that the attempts of children to board the train were habitual (during school months) and that the plaintiff was only six years old, clearly differentiate this case from the Swartwood and Bennett cases. The summation of the annotator, supra, is "Railroad companies are ordinarily under no duty of keeping trespassing children from boarding their cars." We recognize that rule; but it is a general rule, formulated, as its words imply, to meet the ordinary case of trespassing. It was never designed to meet an extraordinary situation, such as that presented here, of license to children of tender years. After recognizing the general rule, the Supreme Court of Kentucky said in Louisville N. R. *Page 461 Co. v. Steele, 179 Ky. 605, 201 S.W. 43, 49, L.R.A. 1918D, 317: "But when as in this case, there is evidence to show that boys of immature age and discretion are habitually permitted by the conductor to jump on and ride moving trains then the company (railroad) voluntarily assumes the duty of anticipating that they will do what he has permitted and consented that they might do, and the further duty of exercising ordinary care to look out for and protect them from injury." After recognizing the general rule, the Supreme Court of Georgia likewise said inAshworth v. Ry. Co., 116 Ga. 635, 43 S.E. 36, 38, 59 L.R.A. 592: "But when the right of way of a railroad company extends through a place used by a number of children, of ages varying from 6 to 15 years, as a playground, and when these children are accustomed continuously, every time the train enters the playground when they are upon it, to swarm upon the train and ride to the limits of the playground, and when the employes of the company know of this custom and make no objection to it, the company is bound to carry the burden which such a knowledge and tacit permission impose, and this burden would require the company to comply with the demands of ordinary care for the prevention of injury to the children." Under like circumstances, the Supreme Courts of Utah and Texas held that a railroad company could not shield itself behind the general rule. See Lawhorn v Rr. Co., 42 U. 244, 130 P. 470; St. LouisS.W. Ry. Co. v. Abernathy, 68 S.W. 539. A careful search has discovered no decision applying the general rule under similar circumstances. Confirmatory of our search, Watson on Damages for Pers. Inj., p. 293, says: "Where the presence of a child trespasser * * * would have been known, had reasonable care been exercised, there may be liability in negligence for injuries sustained — a doctrine acquiesced in by even the strongest advocates of the `no duty to trespassers' rule." Consequently, we will not apply that rule here; but hold that the long duration of the practice of boarding this train with the tacit approval of the practice by *Page 462 the conductor and brakemen, imposed on defendant the duty to anticipate a continuation of the practice and to make reasonable efforts to discourage it. For failure to do so, defendant must now respond in damages to the plaintiff. Numerous errors are accredited by defendant to rulings of the trial court on evidence, instructions and argument which relate to the actual knowledge of some of the train crew that plaintiff was on the train. Since we are of opinion that proof of actual knowledge of his presence was not requisite, we see no prejudicial error in the rulings, or occasion to comment thereon. Upon motion to set aside the verdict, the court order states the trial court "indicated that he was of opinion that the verdict was excessive and that same ought to be reduced to $25,000.00, but the plaintiff refused to remit any amount of said verdict and the defendant refused to agree to any such remittitur and insisted upon its motion to set aside the verdict", and that thereupon the court overruled the motion. Defendant charges that since the trial court considered the verdict excessive, he erred in not setting it aside. To have warranted such action, under our practice, the court should have been convinced that improper motives swayed the jury in fixing the amount of the verdict. The court order expresses no such conviction. The personal idea of the court on the quantum of damages, alone, should not overbalance that of the jury. The court "will not set aside a verdict simply because it would not have been willing, if sitting as a juror, to assess so large an amount." Corrick v. Ry. Co., 79 W. Va. 592, 595, 91 S.E. 458,459. Defendant also charges error to several remarks made by counsel for plaintiff in his argument to the jury. The court directed the jury to disregard all the remarks we conceive to have been objectionable, except a statement of counsel, that in his experience, "railroad witnesses all see the same way." Statements to the jury of counsel's personal experience are essentially improper. In *Page 463 this instance, however, the verdict was based on evidence practically uncontroverted by defendant's witnesses; so we see no prejudice to defendant from counsel's impropriety. The judgment is affirmed. Affirmed. Upon petition to rehear: The defendant asserts that at the trial, the plaintiff did not base his right of recovery upon failure to use due care to keep him off the train, but upon failure to use due care after he was or should have been discovered on the train. This assertion is not sustained by the record. The declaration, the evidence and an instruction given for plaintiff accordantly show that he based his demand upon a concurrence of the two failures. His assumption of a greater burden than was requisite, does not of itself militate against him. Defendant says that because of its idea that plaintiff was relying only on negligent train operation after he boarded the train, it did not examine but one of its train crew (the fireman) on his knowledge of the children's practice to board the train, and if given another trial, can show that none of the crew knew of the practice. During the period of the practice, the train in question was operated by a number of different crews. (Eight different crews were operating the train under a "pool" arrangement at the very time of plaintiff's injury.) Consequently, the fact that one crew may not have known of the practice would not alone discredit plaintiff's evidence of the practice. The petition is refused.