Tawney v. Kirkhart , 130 W. Va. 550 ( 1947 )

To a judgment for $8,000.00 recovered in the Circuit Court of Roane County in an action of death by wrongful act brought by Gladys Tawney, Administratrix of the Estate of Henry Clay Tawney, deceased, against M. C. Kirkhart and The Baltimore and Ohio Railroad Company, a Corporation, the defendants below each prosecutes a separate writ of error, the accident in which plaintiff's decedent met his death having occurred at a public crossing of the Baltimore and Ohio Railroad near Big Chimney, Kanawha County, at approximately 8:00 o'clock on the morning of April 21, 1945, when a truck in which decedent was riding was struck by one of the named railroad's passenger trains traveling on scheduled time from Charleston to Grafton.

In order to clearly state the assignments of error it will first be necessary to state the circumstances of and preceding the accident.

Henry Clay Tawney lived near Newton, a hamlet in Roane County between twenty and twenty-five miles northeast of Clendenin and not far from the Clay County line. He was employed by the United Fuel Gas Company as one of a crew to do repair work on its pipe lines and other outdoor work. M. C. Kirkhart, one of the defendants, was the work foreman in charge and as such was furnished with a three-quarter ton Ford pickup truck covered by a canvas top supported by a metal framework and held in place by being fastened to the sides of the truck's body. The truck he kept at his home, also near Newton, and used for the purpose of carrying to and from their work the members of the crew that worked under his direction and hauling their tools. The crew, on this occasion, was fourteen in number and its members lived near either Newton or Clendenin or on or near the road between. The general foreman lived near Clendenin, and it was customary for Kirkhart, and evidently others, to report to him at the time the day's pay began at about seven-thirty A. M. in order to receive instructions as to the nature and location of the work for the day. Kirkhart would then with the truck take the crew to the first of the day's jobs, on this occasion several miles south of Big Chimney and reached from Clendenin by following State Route 119 which crosses Elk River between Big Chimney and a railroad station on the other side of the river known as Bream.

On the morning of the accident Kirkhart had picked up most of his repair gang before he reached Clendenin. There he stopped at the home of the general foreman, got directions for the day, and proceeded toward the location of the first of the day's work. As he started across the bridge at Big Chimney he, as usual, was driving the truck, with Ashley sitting next to him on the driver's seat and Hensley on the right side. This left twelve men in the body of the truck under its tarpaulin cover which was closed at the front, it having a small isinglass window, and open at the back. After crossing the bridge the truck was traveling slowly with decreasing speed, so that when it approached the railroad one hundred and seventy-four feet distant it was barely creeping. It was there that between 7:55 and 8:00 o'clock it was struck by a B. O. train. Since the truck was thrown approximately forty feet forward and to the left where it was found upright on all four wheels, it is unlikely that it reached the track.

Since both M. C. Kirkhart and the Baltimore and Ohio Railroad Company are defendants in this action and since their interests, as disclosed by the testimony, to a large extent conflict, they appeared and pleaded separately in the court below, and here, as stated, they prosecute separate writs of error. The assignments briefed and submitted by the Baltimore and Ohio Railroad Company or the points to which those assignments were reduced by its counsel are as follows:

That it was error for the trial court to refuse the railroad defendant four peremptory challenges in denying it a panel of twenty-four jurors; that the court erred in refusing to direct a verdict in its favor; that the fireman and engineer maintained a reasonable and proper lookout; that the fireman, he being the only person who could view the crossing from the engine, had a right to assume that the truck would stop and permit the train to pass; that the plaintiff has failed to show that crossing signals were not given and that the failure to give the crossing signals was the proximate cause of the death of plaintiff's decedent; that the statutory warning signals were given as is shown by the overwhelming weight of the positive, as distinguished from the negative, testimony; that Kirkhart was under a positive duty to stop, look and listen effectively, and that his failure to perform that duty was the sole cause of the accident; that Kirkhart was negligent in failing to observe the train approaching; that the sole proximate cause of the accident was Kirkhart's negligence; that plaintiff's decedent was guilty of contributory negligence; that the verdict is against the clear preponderance of the testimony; and that Kirkhart is liable regardless of the compensation act. The railroad company also assigns as error the refusal of the trial court to give its instructions Numbers 13 and 18, which will be discussed in connection with other assignments.

Kirkhart's contention is that he exercised reasonable care and that the accident occurred due to the heavy fog limiting visibility and to the fact that the Baltimore and Ohio Railroad Company failed to give the crossing signal and failed to maintain a proper lookout. Kirkhart also contends that because of the fact that he is an employee of the United Fuel Gas Company, a subscriber under the West Virginia Workmen's Compensation Act, and the accident occurred during the course of and as a result of his employment, he is protected by the compensation coverage of his employer, and, even in the event of his negligence, is not liable.

The declaration in this case charges concurrent negligence, which is separate acts of negligence operating simultaneously without either, or any, of which the injury would not have occurred, the liability for negligence not necessarily resting upon its being the sole cause of an injury. However, if it can be established that one tort feasor's conduct was the sole cause of the injury, that fact, of course, excludes concurrent liability. As between the two defendants that is the contention here.

We will deal first with the assignment that it was error not to direct a verdict in favor of the Baltimore and Ohio Railroad Company because its discussion will require a detailed account of the testimony that will serve also to throw light on the other assignments.

The negligence of which the railroad defendant is accused is the failure to maintain a proper lookout and the failure to comply with the provisions of Code, 31-2-8, by giving signals of the approach of its train to the Bream Crossing at a distance of at least sixty rods therefrom and to continue signals for a time sufficient to give due notice of the train's approach. We are of the opinion that on both these questions there was conflict in the testimony with the result that there was sufficient evidence on both sides to have sustained a verdict in favor of either.

As to maintaining a lookout, the testimony of the engineer, whose seat was on the right of the cab is to the effect that a slight curve to the left in the railroad track a short distance below Bream caused the boiler of the locomotive to obstruct his view of the track, making it impossible for him to see the crossing in time to have stopped or slowed down his locomotive in order to prevent a collision thereon. There was a plat introduced by the railroad company showing the curvature of the track at the point in question. No dimensions of the locomotive's boiler, said by the engineer to have obstructed his vision, appear in this record. Therefore we are of the opinion that the jury could consider the curvature of the track shown by the plat as conflicting with the testimony of the engineer that the boiler obstructed his vision of the crossing. During his examination in chief the engineer stated that the train left Charleston at seven-forty and arrived at Bream at seven forty-seven, the distance being eight miles. This statement was not corrected on his examination in chief and his effort to correct on his cross examination leads to further confusion.

The fireman testified that it was a clear, damp morning and that he saw the truck while the locomotive was some distance from the crossing at Bream but that it was going very slowly and that he at first assumed that it was going to stop. This testimony conflicts with that of the plaintiff to the effect that there was a heavy fog. He did not call the engineer's attention to the truck until it became evident that the danger of a collision was imminent. He then shouted to the engineer who at once applied the emergency brake, used sand, and did what he could to stop the train. It was then too late. In maintaining a lookout, particularly in a hilly country with winding roads, it is the joint responsibility of the engineer and the fireman, and since the fireman's duty can be effectively performed only by informing the engineer who controls the movement of the locomotive, it will not do to say that the duty of maintaining a lookout is sufficiently performed by the fireman informing the engineer when a crash is imminent. The cases cited by counsel for the railroad plaintiff in error to the effect that the servant of the railroad may assume that a vehicle approaching a crossing intends to stop instead of crossing before an approaching train we believe is another way of stating that the railroad has the right of way, and is subject to the same qualifications.

As to the question of the crossing signals, there is a decided conflict in the testimony. All of the surviving passengers of the truck, with the exception of three, testified positively that the bell did not ring nor the whistle blow. Added to this is the testimony of a man by the name of Lucas who was standing at the crossing eight feet from the south track and who says that the whistle was not blown nor the bell rung at the whistling post for the Bream Crossing nine hundred and fifty-six feet to the west, although the whistle was blown for the Granny's Branch Crossing approximately three-quarters of a mile farther to the west. The testimony of a Mrs. Belcher, whose home was near the railroad track and about five hundred feet above Bream Crossing, is that the whistle was not blown nor the bell rung. She says it was her custom to listen because she sent her children to school on a bus that went by her home a few minutes after the train ran and that although the accident happened on Saturday, as a matter of habit she was listening that morning as well. Houston Copen, who lived in one of the other houses in the same row that Mrs. Belcher's home was in, testified that he was listening that morning for the crossing signal in order to watch the train go by, as was his custom, but that the signals were not given. As opposed to this testimony the defendant introduced the engineer, fireman, baggage master, two postal clerks and a miner who lived on the north side of the Elk River, all of whom stated positively that the whistle was blown at the Bream whistle post and some of whom testified that the bell was rung also.

The principal contention of the defendant railroad company in connection with this testimony concerning the giving of the signals is to the effect that positive testimony that a sound was heard is not contradicted by negative testimony that the sound was not heard, since in the latter case the sound may have been made and simply not heard. The railroad company contends that testimony that the whistle was not blown, as here, should be given no greater weight than testimony that the whistle was not heard. For that reason the defendant contends that there is no direct contradiction and that its positive testimony that the whistle was blown establishes that fact, citing Cavendish v. Chesapeake O. R. Co., 95 W. Va. 490, Point 1, Syllabus, 121 S.E. 498, as approved in Jones v.Virginian R. Co., 115 W. Va. 665, 177 S.E. 621. The Cavendish case states plainly that the circumstances of each particular case control the application of the rule and on page 675 of the opinion in the Jones case will be found the statement that in that case none of the plaintiff's witnesses at the time of the accident were giving particular attention to the signals and that none of them undertook to state unequivocally, as here, that the train signals were not given. The plaintiff below meets this contention by citing Carnefix, Admr. v. Kanawha M.R. Co., 73 W. Va. 534, 82 S.E. 219, the holding of which concedes the principle contended for by the plaintiff in error, but goes further by declaring that negative testimony as to the existence of a sound, as a matter of law may have equal weight with positive testimony to the same effect, provided that "special circumstances" gave the witnesses who testified negatively a specific and definite reason for listening or being on the alert as to whether a sound existed at a specific time.

Two earlier West Virginia cases dealing with the same question are Canterbury v. Director General of Railroads, 87 W. Va. 233,104 S.E. 597, and Casdorph v. Hines, 89 W. Va. 448,109 S.E. 774, the latter case holding that the negative testimony of witnesses who were in a position to observe with unusual care the failure of the railroad company's agent to sound the whistle was entitled to peculiar weight. See also the annotation in 162 A.L.R. 9 at page 75 where the cases concerning auditory signals are annotated and at page 93 where the cases concerning witnesses in vehicles will be found. As stating the proposition that an issue of fact between witnesses who testify that the whistle was blown or the bell rung on the occasion in question and those in a position to observe who testify positively that it was not blown presents a question for the jury, see Kelley v. Kanawha M. R. Co., 99 W. Va. 568,130 S.E. 677.

A number of the plaintiff's witnesses were confronted with what a jury could well regard as "special circumstances" that caused them to pay particular attention to whether the train actually whistled. Certainly the three who were on the front seat of the truck about to cross the track were in circumstances that required their attention. Mrs. Belcher's reason for listening attentively, as well as that of the witness Copen, both of whom testified that the whistle did not blow, could have placed them in the class of witnesses whose testimony as a matter of law was entitled to equal weight with the testimony of the defendant's witnesses. We are of the opinion that it was an issue of fact the decision of which rested with the jury and hence that there is no maintainable reason for setting the verdict aside because the evidence of the defendant railroad company clearly preponderates that of the plaintiff on the question of maintaining a lookout or of giving the required signal for the Bream Crossing. The railroad company's instruction No. 13 was based upon the witnesses of the plaintiff having testified that they did not hear the signals. Their testimony was to the effect that the signals were not given. The instruction was properly declined.

The sixth contention of the railroad company is that it was the duty of Kirkhart to stop, look and listen effectively before crossing its track. This question we believe can be dealt with together with the seventh, eighth and ninth questions briefed and submitted, the last three having to do with visibility the morning of the accident, Kirkhart's negligence in failing to observe the train, and that Kirkhart's negligence was the sole proximate cause of the accident.

Of course it is to be borne in mind that the negligence of Kirkhart is not imputable to plaintiff's decedent.Parsons v. New York Cent. R. Co., 127 W. Va. 619,34 S.E.2d 334; McClaugherty, Adm'r. v.Tri-City Traction Co., 123 W. Va. 112,116, 14 S.E.2d 432; Jones v. Virginian R. Co., 115 W. Va. 665,177 S.E. 621; Jameson v. Norfolk W. R. Co., 97 W. Va. 119,124 S.E. 491. That being so we believe that our discussion concerning the duty of the railroad to maintain a lookout and to sound the required crossing signal disposes of the question as to whether the negligence of Kirkhart was the sole proximate cause of Tawney's death. Undoubtedly there was testimony enough to sustain a finding by the jury that Kirkhart was guilty of negligence. We believe there was also enough testimony to sustain a finding that the defendant railroad company had failed to perform its duties required by law and had not exercised the degree of care that it should, and that had it exercised proper care the accident would not have occurred and therefore its failure was a contributing cause.

As to the extent to which Kirkhart's negligence contributed to the injury and the extent to which that of the railroad company contributed, it is clear that that cannot be determined and is not a question before this Court. Undoubtedly it was Kirkhart's duty to look and listen and if necessary to stop for that purpose. Parsons v. New York Cent.R. Co., 127 W. Va. 619, 34 S.E.2d 334; Robertson v. MonongahelaPower R. Co., 99 W. Va. 356, 128 S.E. 829. There is some testimony that the fog was quite dense and that visibility was limited to less than forty feet. There is testimony to the contrary. The headlight of the locomotive was not lighted. Kirkhart's testimony is to the effect that the window of the cab of the truck facing the direction from which the train was coming was down four or five inches so that he or one of the men sitting with him could observe and Hensley testified that he could not see the train through the fog until it was within about twenty feet of the truck and that then he saw it through the open window. The baggage master testified that immediately after the wreck he saw the truck twenty or thirty feet from the track and that the right window was closed and beclouded with steam. It is not possible in a matter of this sort to discuss and compare in detail the many conflicting statements made by witnesses. We can say only that we have examined the record with care and have reached the conclusion that there is no showing as a matter of law that Kirkhart's negligence was the sole proximate cause of the death of plaintiff's decedent.

The tenth point briefed is that plaintiff's decedent was guilty of contributory negligence in not warning Kirkhart of the approach of the train under the rule laid down inGilkerson, Adm'r. v. Baltimore O. R. Co., 129 W. Va. 649,41 S.E.2d 188; Jones v. Virginian R. Co., 115 W. Va. 665,177 S.E. 621; Jameson v. Norfolk W. R. Co., 97 W. Va. 119,124 S.E. 491; Waller v. Norfolk W. R. Co., 108 W. Va. 576,152 S.E. 13.

In Jameson v. Norfolk W. R. Co., 97 W. Va. 119,124 S.E. 491, cited by counsel for the railroad company, the rule is limited to a passenger who "had full opportunity to see and hear the approaching train in time to warn the driver of the automobile." Plaintiff's decedent was one of fourteen passengers riding in the truck driven by Kirkhart. Two of these passengers sat on the seat with the driver. Twelve of them, including plaintiff's decedent, rode on side seats in the body of the truck which was covered by a canvas tarpaulin supported by metal and fastened to the sides of the truck. This covering had no windows with the exception of a small isinglass opening at the front. The back of the truck was open. In order for plaintiff's decedent to see in the direction from which the train was coming it would have been necessary for him to unfasten and lift the right side of the cover, with eleven other men in the small body of a three-quarter ton truck, together with tools, paint, et cetera. It is quite apparent that plaintiff's decedent did not have full opportunity to see and hear the approaching train.

The eleventh point briefed is that the verdict against the railroad company is in conflict with the clear preponderance of the testimony. We believe that this has been disposed of on the points previously discussed.

The twelfth point is that the court erred in refusing, upon motion of the defendant railroad company, to call a panel of twenty-four jurors instead of the usual panel of twenty, in order to allow the defendant railroad company four peremptory challenges, instead of allowing the two defendants whose positions were conflicting and hostile only four challenges between them. The right to peremptory challenges is conferred by statute and undoubtedly it is reversible error to deny that right to a litigant entitled thereto. Code, 56-6-12;State v. Pearis, 35 W. Va. 320, 13 S.E. 1006; State v.Baltimore O. R. Co., 15 W. Va. 362, 391. Defendants whose interests are the same exercise the right in common. Under the clear weight of authority from other jurisdictions, where the interests of defendants are hostile upon motion and proper showing it is error to decline the statutory number of peremptory challenges to each defendant. Here there is no question concerning a proper motion made in due time. The motion, however, is not sustained as a matter of course, but requires a "showing" to support it. 136 A.L.R. 428. Here the court's attention was not directed to anything in support thereof nor was any showing made. The testimony at the trial fully justifies the statement of counsel for the railroad company that the interests of Kirkhart and their client were conflicting and hostile. There was, however, no showing of that nature before the Circuit Court at the time of the motion nor was the motion accompanied by an offer of such a showing. In this instance an examination of the pleadings possibly would show hostility, but we do not believe the mere statement that conflicting interests exist, without more, required the judge to take the initiative in inspecting the pleadings. If the pleadings are depended upon as the required showing the movant should direct the attention of the court to the reasons for so regarding them. Otherwise it is not error to disregard them. We therefore are of the opinion that it was not reversible error for the trial court to overrule the railroad company's motion.

The refusal of the railroad company's instruction No. 18, which was a statement of the "stop, look and listen" rule, we believe was justified because the rule dealt with was sufficiently covered by other instructions.

Counsel for Kirkhart contended that because Kirkhart's employer, United Fuel Gas Company, was a subscriber in good standing to the Workmen's Compensation Fund that that fact protects him from liability for negligence committed while discharging his duties of his employment. The cases cited to sustain this theory with one exception are from other jurisdictions where either a constitutional or a statutory provision differing from ours and relieving a negligent coemployee from liability is in effect. However, in addition to cases from other jurisdictions counsel for Kirkhart citeHinkelman v. Wheeling Steel Corporation, 114 W. Va. 269,171 S.E. 538, holding that a company doctor by reason of his employer being a subscriber is protected by the compensation act from liability for malpractice that aggravated an injury of another of the company's employees contracted in the course of his employment. It would seem that the same reasons that apply to the holding that, in the absence of a constitutional or statutory provision to that effect, a coemployee's negligence is not protected by the compensation act would apply in the Hinkelman case. There is no contract as between coemployees and they are subject to the provisions of the compensation act in their relationship with each other in no way. They pay nothing into the fund that entitles them to protection under its terms. We can perceive nothing in sound reasoning that would entitle a coemployee to gratuitous protection for his own misconduct. To hold that a coemployee is not liable for his own negligence would increase the hazard of employments and be contrary to public policy. We have been able to find nothing apart from an express constitutional or statutory provision such as exists in New York, Texas, Massachusetts and Virginia that would entitle him to an exemption from liability. The opinion in the Hinkelman case seems to be based upon an assumption that the act contains a provision to the effect that there shall be no liability for an injury occurring in the course of and resulting from the employment of a person employed by a subscriber to the fund, extending the meaning of the act to include not only the employer, but also coemployees. At no time has our compensation act contained that broad a provision. It protects only the employer from common law liability. Being of the opinion that the Hinkelman decision is unsound, it is hereby expressly overruled.

For the foregoing reasons the judgment of the Circuit Court of Roane County is affirmed.

Affirmed.