Sommerville v. Pennsylvania Railroad Co. , 151 W. Va. 709 ( 1967 )

CaplaN, Judge:

This case is before the Court on appeal from a final judgment of the Circuit Court of Hancock County entered on a jury verdict as to damages after the court had directed a verdict on liability for the plaintiff.

The defendant, The Pennsylvania Railroad Company, a corporation sometimes herein referred to as the “Railroad”, filed its answer to the complaint and moved the court for leave to make Weirton Steel Company, a corporation, a third-party defendant to this action. The third-party complaint was filed and notice of its motion was properly served on the plaintiff. After the Weirton Steel Company filed its answer to the third-party complaint, a hearing was held and the motion to make Weirton a third-party defendant was granted.

The National Steel Corporation, of which Weirton is a division, instituted an action against The Pennsylvania Railroad Company for damages to its building. At a pretrial conference the court consolidated these cases hut, for the purpose of a trial by jury, the claim of Sommerville against The Pennsylvania Railroad Company was ordered severed and a trial of that case was held, resulting in this appeal.

In his complaint the plaintiff, Henry R. Sommerville, alleges that on October 1, 1959 at 2:20 A.M. he was an employee of the Weirton Steel Company and was at that time engaged in his employment in a building on Weirton’s property; that while so employed the defendant railroad, through its servants or employees while operating a train through the premises of Weirton, negligently, carelessly and unlawfully so operated the train that it collided with the building in which the plaintiff was working; and that said collision caused the destruction of the building and severe injury to the plaintiff.

Answering the complaint, the defendant railroad denied that it negligently, carelessly and unlawfully operated the train which collided with the building in which the plaintiff was then working. It denied that the plaintiff was injured as a direct and proximate result of any negligent, careless and unlawful conduct of said defendant. The answer of the Railroad then affirmatively alleged that the collision complained of was proximately caused by the employees of Weirton Steel Company in that they failed to properly inspect and maintain the said railroad tracks, equipment and switch belonging to said company. The basis for the latter defense is found in the third-party complaint wherein the defendant railroad relies on a sidetrack agreement entered into with Weirton Steel Company for the operation of trains by the Railroad over the tracks located on the Steel Company’s premises. Particular reliance is placed on paragraph 8 of said agreement part of which reads as follows:

“The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Industry, its employees, or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about said side tx-ack; and if any claim or liability, other than from fire, caused by locomotives as aforesaid shall arise from the joint or concurring negligence of both parties hereto it shall be borne by them equally.”

The foregoing is predicted on that provision of the agreement which provides that Weirton Steel shall maintain the portion of the side-tracks situate on the property of said company.

The following factual situation gave rise to this action. On October 1, 1959, at approximately 2 A.M. a train of The Pennsylvania Railroad Company, operated by its employees, entered the premises of Weirton and proceeded along track #3 for the purpose of picking-up an empty box car at the dead end of that track. In performing this operation, the train backed down track #3, travelling over a switch which permitted a spur line, track #2, to join said track. After effectively coupling the empty box car, the defendant’s train proceeded in a forward direction to move the cars along track #3. It appears from the evidence that the locomotive and all of the cars, except the last car in line, successfully passed over the aforementioned switch. The last car, due to what undisputedly has been acknowledged to have been a defective switch, failed to traverse that point. Instead, as indicated by the testimony, the front set of wheels of said last car followed the train but the rear set of wheels “picked the switch” and started down the spur, track *2. As a result the ear collided with the building which was situated between tracks *2 and #3 and in which the plaintiff was then working.

It is the position of the defendant railroad that in accordance with a sidetrack agreement between the parties entered into in 1927, and in effect since that time, Weir ton constructed, owned and maintained all of the tracks on its property; that by reason of said agreement it, Pennsylvania, had no obligation or duty of maintenance of any of the tracks, equipment or switches on Weirton’s property; that negligence in failing to properly inspect and maintain the switch in question cannot be chargeable to the defendant; and that in any event, by reason of said track agreement, the aforesaid duties and obligations are Weirton’s not the defendant’s. It appears from the record that Weir-ton did construct and has maintained the tracks and switches on its property. The defendant also relies on the doctrine of sudden emergency, asserting that when this accident occurred its employees were confronted with a situation constituting a sudden emergency and that they did everything possible to prevent the damage and injury to the company and plaintiff.

At the completion of all of the evidence, the trial court, being of the opinion that the sidetrack agreement did not relieve Pennsylvania of its obligation to properly maintain tracks over which it was operating, as to a third person, and that such duties were non-delegable, instructed the jury to return a verdict in favor of the plaintiff as to liability. The case was then submitted to the jury for its verdict as to damages and the jury returned a verdict in the sum of $9,500.00 in favor of the plaintiff. After the defendant’s motion to set aside the verdict was denied, this appeal was prosecuted.

A careful examination of the pleadings filed in this case and of the evidence adduced during the trial reveals clearly that the defense to the complaint is based principally on the sidetrack agreement between Pennsylvania Railroad Company and Weirton Steel. The Railroad contends that, in view of its agreement with Weirton, any negligence existing by reason of the failure to properly inspect and maintain the tracks and switches is chargeable, not to it, but to Weirton. The defendant railroad readily acknowledges, and it is undisputed in the record, that the injury suffered by the plaintiff was the proximate result of the admittedly defective switch.

This position is evidenced by the language in its answer to the complaint, wherein Pennsylvania said: “Defendant alleges that said collision mentioned in the Complaint was proximately caused by employees of the Weirton Steel Company, and by their failure to properly inspect and maintain the said railroad tracks, equipment and switch belonging to the Weirton Steel Company, a corporation.”

In substance the Railroad argues that although the defective switch was the proximate cause of the plaintiff’s injuries, the failure to discover such defect was chargeable to Weirton. It reasons that Weirton had agreed to inspect and maintain the tracks and switches on its premises and its failure to fulfill its obligations relieved the Railroad of all responsibility.

The sidetrack agreement referred to above was entered into by the defendant railroad and Weirton. As between those parties it appears to be a valid contract, although that is a matter not to be determined in this proceeding. The plaintiff, however, was not a party to that agreement, so its provisions are not relevant insofar as the subject claim is concerned.

The Pennsylvania Railroad Company, being a common carrier, Code, 1931, 31-2-1, is acting within its franchise as such when it operates its trains on the property of others. Code, 1931, 24-3-1. As a common carrier, a recipient of a franchise from a governmental authority, it is charged with a duty to maintain in a safe condition the tracks, equipment and switches over which it operates. 74 C.J.S., Railroads, Sec. 124a. This duty exists whether it is operating its trains over its own right of way or on tracks situate on property of others. In the instant case, therefore, Pennsylvania ’s status as a common carrier was not diminished by the fact that it was using tracks owned by Weirton. It remained primarily its duty to inspect the tracks and switches for the purpose of determining that its train could travel safely thereover. The sidetrack agreement with Weirton did not abrogate that primary duty.

That such tracks and switches are considered under the control of the Railroad, even though they are on the property of Weirton is clearly demonstrated by the following statement in 74 C.J.S., Railroads, Sec. 410: “Sidetracks constituting part of a transportation system are among the works and appendages usual in the convenient operation of a railroad and are ‘facilities’ of the railroad, even though privately owned.” See also Lehigh Nav. Coal Co. v. Pennsylvania Public Utility Commission, 133 Pa. Super. 67, 1 A. 2d 540; Rogoff v. Buncher Company, 395 Pa. 477, 151 A. 2d 83; United States v. Baltimore and Ohio Railroad Company, 333 U. S. 169, 68 S. Ct. 494, 92 L. ed. 618.

As herein noted, the Railroad, although acknowledging that the defective switch was the proximate cause of the plaintiff’s injury and that there was a duty to maintain that switch in a safe condition, asserts that it was relieved of such duty by reason of its sidetrack agreement with Weirton. The subject agreement may be valid as between Weirton and Pennsylvania and may supply a basis for an action by either party for a breach thereof. However, as to the plaintiff, a third party, it has no effect.

A railroad operating mammoth equipment over its lines owes a duty to exercise the care which the law prescribes for the safety, not only of its passengers, but also of others in close proximity to its tracks. By reason of its franchise it assumes, as one of its primary obligations, the operation of its equipment and the maintenance of its tracks and switches under such conditions as will secure the safety of the public, including the person or property of others near the track. The failure to perform under such obligation, resulting in injury or damage, renders the railroad liable. 44 Am. Jur., Railroads, Sec. 412.

The duty of Pennsylvania in the instant case was the maintenance of the subject switch so as to secure the safety of the public. To accomplish this effective inspection was essential, and, as to the public, this too was a duty of the railroad. The uncontradicted evidence clearly reveals an omission by the Railroad to perform its duty. It must be conceded that proper maintenance was not undertaken because the train was permitted to travel over a defective switch. Furthermore, the testimony on behalf of the railroad affirmatively shows that it failed to maintain the switch and that no inspection of the switch was made. Therefore, the omission to perform its duty was total. The railroad admits that the defective switch was the cause of the accident. In view of this admission and having found that the railroad was under a duty to maintain the subject switch, which it failed to do, it remained only for the court to direct a verdict for the plaintiff regarding liability. The unquestioned failure of the defendant railroad to perform its duty, which failure resulted in the injury, constituted negligence as a matter of law and rendered tlie defendant liable, in the absence of contributory negligence on the part of the plaintiff. It is well settled that when the material facts are undisputed, as they are here, and reasonable men may draw only one conclusion from them, the question of negligence is a question of law for the court. Griffith v. Wood, 150 W. Va. 678, 149 S. E. 2d 205; Graham v. Crist, 146 W. Va. 156, 118 S. E. 2d 640; Brake v. Cerra, 145 W. Va. 76, 112 S. E. 2d 466; Workman v. Wynne, 142 W. Va. 135, 94 S. E. 2d 665; Hartley v. Crede, 140 W. Va. 133, 82 S. E. 2d 672; Mathews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S. E. 2d 180; Daugherty v. Baltimore and Ohio Railroad Company, 135 W. Va. 688, 64 S. E. 2d 231; Wood v. Shrewsbury, 117 W. Va. 569, 186 S. E. 294. In these circumstances there is nothing for the jury to consider and it is incumbent upon the trial court to declare the defendant liable as a matter of law. This the trial court did and we sustain its decision.

We come again to a consideration of the sidetrack agreement and the Railroad’s reliance thereon. It contends that Weirton assumed the duty to maintain and inspect the tracks and switches thereby relieving it, the Railroad, of liability. As a general rule, a railroad may limit its liability by contract and such limitation may be effective as between the parties thereto. However, it is also the rule that it cannot relieve itself from liability for negligent breach of a duty imposed upon it for the benefit of the public, or for the breach of duties which it owes the public. A railroad cannot exempt itself from liability for losses resulting from its negligence or misconduct. 44 Am. Jur., Railroads, Sec. 412. See 14 Am. Jur. 2d, Carriers, Sec. 554 and cases cited in the footnotes thereto. Annese v. Baltimore & Ohio Railroad Company, 87 W. Va. 588, 105 S. E. 807, 22 A. L. R. 869; Bosley v. The Baltimore and Ohio Railroad Company, 54 W. Va. 563, 46 S. E. 613. The Railroad cannot relieve itself of its primary obligations and duties by contracting with another to perform them. See Humphrey v. The Virginian Railway Company, 132 W. Va. 250, 54 S. E. 2d 204 and Carrico v. West Virginia Cent. & P. R’y Co., 39 W. Va. 86, 19 S. E. 571. In the latter case the Court said: “The doctrine of non-liability of a defendant, because the act is that of an independent contractor, does not apply where the thing, which that contractor does and does negligently, is something which the law in defence of public interest requires the defendant to do carefully and properly.”

We are of the opinion, therefore, that the trial court correctly ruled that the defendant railroad could not by a contract of indemnity with Weirton absolve itself of liability for its negligent injury of the plaintiff.

It has been argued that whether the defendant railroad exercised the necessary degree of care presents a jury question. In view of the undisputed evidence, which shows total nonperformance of a required duty, it is difficult to discern the relevancy of such argument. Since the Railroad failed altogether to perform a duty, which it was bound by law to perform, the matter of degree of care is of no significance here.

It also has been argued that even if the Railroad had a duty to inspect, such inspection would have been to no avail. This apparently is based on the testimony of the plaintiff’s witness, Mr. Milo Gray, Safety Director of the Weirton Steel Company. Mr. Gray testified that he observed the switch and that it was broken; that the switch was on the surface of the ties between the rails and was visible; that the brakeman working there would not have been able to have seen the switch “in this particular case”; and that if he had operated the switch he very definitely would have noticed the defect. Employees of the Railroad, testifying on its behalf, stated that they did not inspect the switch but that if the switch had been operated the defect would have been readily discernible.

We fail to see, under the evidence adduced at the trial of this case, why it would have been to no avail to have inspected this defective switch. Perhaps a cursory glance would not have revealed a defect but that does not satisfy the requirements of an inspection. There was testimony that the switch was visible and that had it been operated the defect would have been readily detected. Furthermore, this switch had not been operated for more than a year and there was no showing that it had been recently inspected. To meet the requirements of law, an inspection in such circumstances must be effective and meaningful.

We have also considered the defendant’s reliance on the doctrine of sudden emergency and find that such doctrine has no application to this case. Nor do we find, as a matter of law, that the verdict returned by the jury was excessive.

For the reasons stated herein the judgment of the Circuit Court of Hancock County is affirmed.

Affirmed.