Connelly v. Virginian Railway Co. ( 1942 )

I am unable to find in Raines v. Railway Co., 39 W. Va. 50,19 S.E. 565, 24 L.R.A. 226, the pertinency which the majority of the Court attaches thereto, for it is my understanding that the principle enunciated therein is based upon a situation where decedent was in full possession of his faculties and the Court indulged the presumption that one so possessed "will use his senses and seasonably remove himself from danger — that he can and will protect himself." The points of the syllabus quoted in the majority opinion from the Raines case reflect a factual situation dissimilar from that in the present record. The majority opinion, characterizing decedent a trespasser upon his becoming unconscious, measures defendant's duty as one "to refrain from deliberate or wanton injury," yet the language in the Raines case says, in part: "A railway company running its train is bound for the safety of such train to keep a reasonable lookout for trespassers on its tracks * * *." Judge Holt, in that case, recognizes that there are variant types of trespassers, among them those not capable of looking out for themselves, while Gunn v. Ohio River R. Co., 42 W. Va. 676,26 S.E. 546, 36 L.R.A. 575, negatives the presumption indulged by the Court in the Raines case where, in point four of the syllabus, it held "that is not the rule as to children of very tender years, or persons plainly and obviously disabled by deafness, intoxication, sleep, or other cause from taking care of themselves." So, under the cases discussed, it is seen that there is a duty to maintain a lookout for a helpless trespasser. See also, Stuck v. Railway Co., 76 W. Va. 453,86 S.E. 13, which compels lookout for trespassers upon a railway track "as is reasonably consistent with the proper performance of their duties in running the train."

Is the rule of Barron v. B. O. Railroad Company, 116 W. Va. 21,178 S.E. 277, 278, as stated in point 2 of the syllabus, yet the law in this jurisdiction? The majority opinion would indicate that it is not, yet the syllabus thereof is silent thereon. That rule merely made applicable to railway cases the doctrine which this Court has employed in other cases where the negligence of two or more parties was involved. Koontz v. Whitney, 109 W. Va. 114, 153 S.E. 797;Wiseman v. Terry, 111 W. Va. 620, 629, 163 S.E. 425. While true, as stated in the majority opinion, the trial court (in the Barron case) was affirmed for having directed a verdict for defendant, yet it is clear from a careful reading of the Barron opinion that it was the lack of evidence which impelled such affirmance. That opinion reads, in part:

"The population of that community was not shown; and neither was it shown that the public was accustomed to use the track at the hour of the accident. In the absence of evidence on those points the case does not develop the need of any particular precaution by the trainmen at the time and place of the accident. The witness who testified there was no light on the front car stated there were lights on the engine. And there was sufficient light from some source (not specified) for him to discern separately the cars both in front of and behind the engine. If the train was thus visible to the only witness who observed it, we cannot say as a matter of law that the failure to have a light on the front car at the place and the hour of the accident was a failure of ordinary care. When the facts are undisputed, negligence is a question of law for the court."

What has been said questions the correctness of the Court's pronouncement of the railway company's duty to a trespasser. Under the evidence adduced, it was not a question of duty to maintain a lookout, for the testimony unequivocally establishes that the railway employees had undertaken to perform that duty. The real issue is whether, having assumed to do so, defendants by the exercise of such degree of care as was commensurate with the circumstances could have avoided striking plaintiff's decedent. The jury answered in favor of decedent's administratrix, and there is substantial evidence to justify its conclusion. The doctrine in the majority opinion, I submit, is contrary to our former decisions. To say that a railroad company is under no duty to a helpless person — though a trespasser — except not wilfully or wantonly to injure him, ignores the factor of train operations in densely populated communities, and, as the facts of the instant case clearly show, would free railroad companies from liability where their employees have a clear and unobstructed view of a helpless person for a distance sufficient not only to see him, but under proper operation of the train to keep from killing him. It would permit employees, as it did in this case, to be derelict where using their eyes would have saved a human life. The duty not to injure wilfully or wantonly arises upon actual discovery, and the point of discovery will generally be where it serves the living rather than the dead.

For these reasons I respectfully dissent.