Meeks v. Ohio River Railway Co.

Dent, PRESIDENT: Margaret Meeks obtained a judgment in the circuit court of Mason County on the 15th day of May, 1901, against the Ohio River Railroad Company, amounting to the sum of two thousand dollars, for alleged injuries. The judgment was rendered on a demurrer to the evidence. There is some objection urged to the evidence of Dr. W. P. Neale, because he testified as to what the plaintiff and. her attending physician, Dr. Sayre, told him. Dr. Neale was not being strictly examined as an expert, but was being interrogated with regard to a personal examination made by himself as to' the condition of the plaintiff. Of course it was improper for him to state to the jury what the plaintiff or Dr. Sayre told him as to her condition, but he had the right, being a physician, to testify as to his personal examination made in the manner in which physicians usually diagnose a case, and this is not only by actual examination of the organs and limbs of the patient, but inquiry as to the symptoms, pains, and otherwise. The court therefore properly instructed the jury to disregard as incompetent evidence the statement made by the plaintiff and Dr. Sayre to Dr. Neale, but it did not err in permitting the opinion of Dr. Neale, together with his sources of knowledge to go to the jury to be considered by them. In such cases the question of damage is largely with the jury, and unless plainly excessive, the court will not interfere with the amount thereof. As heretofore often held, the court must look at this case as though the judgment depended on the verdict of a jury. Teale v. Railroad Co., 49 W. Va. 86; Shaver v. Edgell, 48 W. Va. 502 (37 S. E. 644); Bennett v. Perkins. 47 W. Va. 245 (35 S. E. 8); Gunn v. Ohio River Railroad Co., 42 W. Va. 676. The facts must be regarded in the light most favorable to plaintiff. They are as follows, to-wit: The defendant’s railroad extends north and south through Mason City along Eirst street. It crosses over Horton street within a square of plaintiff’s residence. The defendant' also had a side track extending along Eirst street, the switch entrance [101] to which from the main track was three hundred and seventy-five feet south of Horton street on First street. On down First still further, a distance of about fourteen hundred and eighty feet from Horton street, the company had a switch known as the Hope Furnace switch. The railroad track from Horton street south almost down to the Hope Salt Furnace switch was practically a straight track, with the view of the track from Horton street south unobstructed. There.were two foot crossings over the railroad track on Horton street, one being on the south side, and the other on the north'side, and. being practically extensions of the sidewalk on each side of the street across the railroad track, except that these crossings were constructed of boards. On May 2d, 1898, a train of freight cars pulled into Mason City from the north, and stopped on the main line on First street with the back end, or- caboose of the train, on the upper, or north side of Horton street, with the bumpers hanging partl}r over the crossing, and with the rest of the train extending from there down close to the frog of the switch oE the sidetrack three hundred feet below. This train did some switching at that point, by disconnecting the- engine from the front end of the train, and running it back and forth with cars in and out of the switch, or side track. After this was done, the engine then ran down to the Hope Salt Furnace switch, and picked up two cars there and was backing with these two cars up the track to the main body of the train -standing just south of Horton street, as above described. Just at this time Margaret Meeks took a notion to go to her sister-in-law’s house on the other side of the track and down First street. The train had consumed about ten minutes in doing the switching above described, and she had seen the train theré five or ten minutes before she started from her house. She could see, and she could hear, and she was acquainted with the premises, and it was broad daylight and the view was unobstructed. She knew the train was there doing the switching. Just as she reached First street, the engine was coming slowly up the track from the Hope Salt Furnace switch. When she reached the crossing, or just before she reached it, she looked and actually saw the engine. At the time and place when shé saw it, the engine was moving back toward the stationary ears, because it did not stop from the time it left the Hope Salt Furnace switch until after it had [102] passed up the track beyond Horton street. When she looked she does not say she saw the engine moying backward but she supposed it would go on down. No signal was given and if a signal had been given, she probably would have supposed it was a signal to start in the other direction. So she stepped in Dehind the caboose while the engine was moving back toward uie stationary cars to which the caboose was coupled, and started across the tracks on the footway. The train was standing motionless, and there was no warning given that it was about to be moved back by the sudden impact of the engine and other cars three hundred feet away. When she had almost succeeded in getting by the train, the engine and other cars thereto attached struck the train with such force as to move it back suddenly about two feet, striking plaintiff and knocking her down. From this statement, it is plain that defendant was guilty of a high degree amounting to what is usually called gross negligence. Its train which was going south stopped across a public crossing, almost blocking it, and the engine was detached, and proceeded to do the switch work. Instead of blocking the whole crossing a narrow footway was left as an invitation to pedestrians. No one was left to guard the crossing or to warn those passing of the backward movements of the train. The plaintiff came to the crossing, saw the train motionless with the engine below the south end and assuming that it was going on southward, and that it would not be moved backward without warning, started across and was caught by the sudden backward movement of the cars. There is no pretense that the defendant was not negligent. The only defence is that the plaintiff was guilty of contributory negligence as a matter of law. As a matter of fact the question of contributory negligence is settled by the demurrer to evidence in her favor. This case must therefore be viewed from her standpoint. The plaintiff did not step in front of a moving train, but she stepped in the rear of a train standing still, when without warning of any kind it was suddenly with immense force hurled back against her. In the case of Barker v. Ohio River Railroad, 51 W. Va. 423, (41 S. E. 148), this Court held that "A railroad company cannot be excused from gross negligence on its part, although the act of the injured person contributed thereto, unless it be shown in evidence that such person was guilty of legal negligence; that is, some act [103] of negligence that an ordinarily prudent person would not have been guilty of under the «same circumstances.” What act of negligence was the plaintiff guilty of that an ordinarily prudent person would not have been guilty of under the same circumstances? She had a right to assume that the defendant would not be guilty of such gross negligence as to hurl an immense motionless train across a public crossing without warning to pedestrians in lawful use of such crossing. Robinson v. Western R. Co., 48 Cal. 409; McWilliams v. D. C. M. Co., 31 Mich. 274; Solen v. Virginia, &c., R. Co., 13 Nev. 106; 8 Am. & En. En. Law (2 Ed.), 420, note 3. She was not bound to presume, foresee or take notice of gross negligence on the part of the defendant, unless in some manner warned thereof. Although she may or could have seen the engine backing toward or approaching the other end of the train, she was not bound to assume that it would strike the train with such force as to hurl it backward two feet. bTo such impact was necessary to couple up the train, but it was damaging to the defendant’s property. Some persons are so extraordinarily prudent'that they will not handle an empty gun barrel detached' from the stock or go within ten feet of a motionless railroad car or train, especially if there is an engine in sight. This is not the kind of prudence the law requires. It protects those who use ordinary prudence from the negligence of those who do not use ordinary care. It is not possible for this Court to determine as a matter of law that the plaintiff did not use ordinary prudence, while the negligence of the defendant in suddenly and without warning backing its train on a public crossing over which the defendant was lawfully "passing is beyond question. The judgment is affirmed. Affirmed.