dissenting:
Respectfully I dissent.
I am unable to discern the pertinency of Code, 1931, 24-3-1 and 31-2-1, cited in the majority opinion. Admittedly, the defendant railroad company is a common carrier and, as such, it has a duty to serve the public, including Weirton Steel Company and to connect with Weirton’s private track facilities. The trial court was obviously correct in holding that, by virtue of its agreement with Weirton Steel Company, the defendant railroad company was not relieved of performance of whatever duty it owed to the plaintiff. It is undisputed also that the accident and the consequent injuries suffered by the plaintiff resulted from the broken switch.
My dissent relates primarily to the nature and extent of the duty owed by the railroad company to *720the plaintiff and to this Court’s holding that the factual question of causation was one of law for decision by the court rather than one of fact for the jury.
In its charge to the jury, the trial court stated: ‘ ‘ This Court must now inform you as a matter of law since the Railroad Company is a common carrier the law of West Virginia will not permit the Railroad Company to delegate its duty of keeping the track or switches in good and safe condition even though the track and switches are on the property of the Weirton Steel Company and owned by said Steel Company, and consequently I must direct you at this time that it is your legal duty to return a verdict in favor of the plaintiff Henry R. Sommerville against the defendant Pennsylvania Railroad Company.” In ruling previously on the plaintiff’s motion for a directed verdict at the conclusion of all the evidence, the trial court, in chambers, made the following statement as the basis of its ruling: “* * * and pursuant to Carrico v. West Virginia Central and Pacific Railroad Co., 39 W. Va., page 86, and pursuant to Baltimore and Ohio Railroad Co. v. American Viscos Corp., 214 Fed. Sup., page 287, this court by analogy believes that the delegation of maintenance of tracks and switches by a railroad company under our statutes and judicial decisions as it affects third parties is a nondelegable duty and consequently the plaintiff is entitled to a directed verdict against the railroad in the above-captioned cause.” In his memorandum opinion filed and made a part of the record in connection with the motion for a new trial, the trial judge again stated his conception of applicable legal principles in language similar to that quoted immediately above.
The trial court obviously was of the opinion that, in line with the holding of the Carrico case cited by him, the railroad company owed to the plaintiff an absolute duty to maintain the switch in good and safe condition and that, upon proof of its failure to do so, liability to the plaintiff followed as a matter of *721course, irrespective of considerations of dne care or negligence. For an additional statement of the character of the duty owed by a railroad company to a passenger, see Searle’s Admr. v. Kanawha & O. Ry. Co., 32 W. Va. 370, pt. 3 syl., 9 S. E. 248.
In his brief filed in this Court, counsel for the plaintiff cites and relies upon the case of Carrico v. West Virginia Cent. & P. Ry. Co., 39 W. Va. 86, 19 S. E. 571, for the proposition of absolute liability. In this respect, counsel is adhering to and espousing the trial judge’s conception of the law which should be applied to the facts of this case. The Carrico case involved an action by a passenger to recover damages for personal injuries caused to him by the collision of a railroad coach with a pile of rocks near the railroad tracks. In the fourth and fifth points of the syllabus, the Court held that the railroad company owed to the plaintiff, as a passenger, “* * * the absolute duty # * to keep its track free from dangerous obstructions of every sort, * * *” and that the railroad company could not relieve itself of that duty by delegating performance of certain work to an independent contractor. Cases of that character, involving injuries to passengers, are wholly inapposite. So are cases involving damage to goods received for shipment, in which cases liability of the carrier is even stricter and more onerous than in cases involving personal injuries to passengers. Hutchinson v. United States Express Co., 63 W. Va. 128, 59 S. E. 949, McGraw v. B. & O. R. R. Co., 18 W. Va. 361; 14 Am. Jur. 2d, Carriers, Section 1040, page 458.
The relationship of a railroad company to a passenger or to a shipper of goods is based on contract and the legal duties thereby imposed are based on the carrier-passenger or on the carrier-shipper relationship. The plaintiff in this case did not bear a relationship to the carrier either of a passenger or a shipper. The duty owed by the defendant carrier to the plaintiff, therefore, was a duty merely to exercise reason*722able care, the same duty owed to a motorist injured in a railroad crossing accident, to a pedestrian injured by a train while oil or near the railroad tracks or to the owner of an animal injured by the operation of a railroad train.
Even if the track and switch here in question had been owned and maintained by the defendant railroad company on its own property and as part of its railroad system, it would have owed to this plaintiff, in these circumstances, only a duty of reasonable care in the inspection and maintenance of its track and switch.
Counsel for the parties, as I understood them, stated before this Court that they had been unable to find and were not aware of any authority for the proposition that the defendant railroad owed to the plaintiff in this case any duty to inspect and maintain the track and the switch, owned and maintained by the Weirton Steel Company on its own private property, comparable to the duty which was owed to the plaintiff passenger in the Garrico case. I believe no authority can be found to place on the defendant in this case any duty to the plaintiff to inspect and to maintain the switch in question, except to the extent that, if at all, such duty may have been required in the discharge of the duty of due care which the defendant owed to the plaintiff.
I believe that in this case, irrespective of the written contract, the primary duty of inspection and maintenance of the track and switch was upon Weirton Steel Company, which owned and maintained these facilities on its own private property. That primary duty could not be “delegated” or avoided by Weirton Steel Company by the mere use of such facilities by the railroad company for the benefit of the owner of such facilities. Whatever duty, if any, the railroad company owed to the plaintiff to inspect and to maintain Weirton Steel Company’s facilities was of a secondary character. Conceivably the railroad company and Weirton Steel *723Company could have been guilty of concurrent negligence which proximately caused the plaintiff’s personal injuries. The plaintiff was not permitted to sue his employer, Weirton Steel Company, because it was a subscriber to the workmen’s compensation fund, from which the plaintiff was paid benefits on account of the injuries he sustained in the accident; hut from this fact the liability of the railroad company does not necessarily follow. If the accident and consequent injuries resulted solely from the employer’s negligence, and if the railroad company exercised reasonable care in the circumstances, then, of course, the plaintiff is not entitled to recover from the defendant railroad company.
The complaint alleges that the railroad company “* * * negligently, carelessly and unlawfully so operated said train that it collided into a certain building * * The answer, as a part of its First Defense, states: ‘ ‘ The Complaint fails to allege any negligent acts of omission or commission.” In a pre-trial conference order it was stated that the defendant railroad company contended that it “ * * * is not guilty of any negligence * * *,” “* * * nor could it by the exercise of reasonable care have any knowledge of any defects in the track, which caused the train to leave the rails thereof.” The motion to set aside the verdict stated that the court erred in directing a verdict for the plaintiff ‘ ‘ * # * as the evidence showed that the train crew were not negligent in the operation of said train. ’ ’ Evidently referring to the alleged duty of the defendant to inspect and to maintain the track and the switch, the fifth point of the motion to set aside the verdict states: ‘ ‘ The evidence showed that this derailment occurred on a private railroad or private terminal of the Weirton Steel Company over which it had complete maintenance and control and that there was no negligence of the railroad which proximately caused the damage.” In connection with the plaintiff’s motion for a directed verdict after the Court had indicated its intention to instruct the jury pursuant to *724the Carrico ease, counsel for the railroad company-stated : “I would like to move the Court that the proper way of submitting this case under the ruling of the Court is to submit the question of negligence of the railroad to the jury and then request the jury to find damages, if any, * * In that connection, counsel stated: “* * * we take objection and exception to this charge because the question of negligent operation of the train by the Pennsylvania Railroad Company is not submitted to the jury * * Counsel further stated in that connection that it was the defendant’s position that there was not “* * * any evidence of negligence of the operation of the train and that was the sole question, we believe, for determination by the Court and determination by the jury at this trial.” In the light of these and other portions of the record, I believe the following statement in the majority opinion is unwarranted: “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 same is true of the italicized portion of the following language in the majority opinion. “As herein noted, the Railroad, although acknowledging * * * that there was a duty to maintain that switch in a safe condition, asserts that it was relieved of such duty by reason of the sidetrack agreement with Weirton. * * (Italics supplied.)
As I read and understand the record, counsel for the defendant railroad from the outset has stoutly denied that it had any duty to inspect and to maintain the track and switch in question; and has persisted in asserting the defendant’s position that if there was any legal reason for liability against the defendant, it must be on the basis of its negligence or a lack of reasonable care.
The Court, in the first point of the syllabus in this case, holds as a matter of law that this defendant, *725“being a eonnnon carrier”, was under “a duty to maintain in a safe condition the tracks, * * *, ’ ’ it was using on private property of another. The Court does not state that the defendant was under a duty to exercise reasonable care in the maintenance of the track. As I understand the majority opinion, the Court holds that there was an absolute, unqualified duty to maintain the track “in a safe condition.” In the body of the opinion, the Court has stated:
“The duty of the 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. * * * 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 the defendant liable, in the absence of contributory negligence on the part of the plaintiff. * * (Italics supplied.)
It is difficult for me to determine whether the Court has held that the defendant, “being a common carrier”, was charged with an absolute duty, in accordance with the Carrico case, to maintain the track and switch in question; or whether the defendant, irrespective of its being a common carrier, was required to observe in relation to the plaintiff, in the circumstances, merely a duty of reasonable care in accordance with the usual legal principles pertaining to tort liability. In all deference, I suggest that the Court *726may have mixed the two bases of liability. In any event, the Court has held, as a matter of law, that the defendant was charged with a duty not merely of due care, but “to maintain in a safe condition the tracks, equipment and switches over which it operates,” on Weirton Steel Company’s property and that such duty exists “in the same degree” even when operating on a privately-owned track and on private property of another. As I have indicated, I believe no authority can be found for the proposition that the defendant owed to this plaintiff any greater duty than a duty of reasonable care; and that the question whether the defendant properly discharged that duty, on the facts of this case, was clearly a question for the jury.
In holding that the question of causation was one of law, the Court places emphasis on the fact that it is undisputed that the switch was “out of repair” or broken and that this caused the accident. The cases cited in that connection are predicated not merely on a state of undisputed facts but also a state of undisputed facts from which “only one inference may be drawn from them by reasonable minds.” See, for instance, Griffith v. Wood, 150 W. Va. 678, pt. 4 syl., 149 S. E. 2d 205. This well settled proposition, as it relates to negligence, has been stated clearly in many prior decisions of this Court, including the following : ‘ ‘ The question of negligence is for the jury when the evidence relating thereto, though undisputed, is such that reasonable men may draw different conclusions therefrom.” Reilley v. Byard, 146 W. Va. 292, pt. 4 syl., 119 S. E. 2d 650. See also Evans v. Farmer, 148 W. Va. 142, pts. 1 and 2 syl., 133 S. E. 2d 710. “Reasonable care is ordinarily a question for the jury.” Robertson v. Hobson, 114 W. Va. 236, pt. 7 syl., 171 S. E. 745. In innumerable cases, the Court has held that before directing a verdict, very reasonable inference favorable to the party against whom a directed verdict is sought, fairly arising from the evidence considered as a whole, should be entertained by the trial court, and all facts should be assumed as estab*727lished which the jury might properly find from the evidence. Duling, Admr. v. Bluefield Sanitarium, Inc., 149 W. Va. 567, pt. 1 syl., 142 S. E. 2d 754. In the light of the quite restricted right of a trial court to take from the jury factual questions pertaining to negligence and due care, I would like to review briefly some of the undisputed facts which, in my judgment, cause this case to be one peculiarly for jury determination.
At the outset, we should bear in mind that the accident resulted from a broken switch, as distinguished from defective railroad track. The accident occurred about two o’clock A. M. It was dark and unlighted in the area where the switch was located. The mechanism of the switch, a portion of which broke, was covered with a metal plate so that motor trucks could be driven across the track at that point. The broken part of the switch, therefore, was not visible. The defective or broken character of the switch could not have been discovered except by “throwing the switch”. There had been no occasion to throw the switch for a long period of time because track Number 2 had not been used for about one and one-half years prior to the time of the accident. On the night in question, therefore, there was no occasion for throwing the switch, because the switch was set in such a manner as to direct the train in the desired course of travel.
I gather from the testimony that the defendant railroad company had used this track frequently, perhaps almost daily, for the purpose of moving and switching railroad cars for the benefit of Weirton Steel Company. On the night in question, the defendant’s diesel locomotive was backed into Weirton Steel Company’s premises to connect with nine cars, including the one which was standing on the track at a point beyond the switch. That car had been moved over the switch to that point about two days before the time of the accident. On the night in question, it was necessary to back the train, or at least a portion of it, across the switch in order to pick up the car which became *728the last car on the train and the one which later became derailed. The plaintiff testified that it was not more than five minntes between the time of the train’s inward trip and the time of its ontward trip.
There is no evidence that the train, or any part of it, experienced any difficulty in passing over the switch two days before or on any other prior occasion. On the night in question, the train, five minutes before the accident, experienced no difficulty in passing over the switch to connect with the car which had been left standing beyond that point. Furthermore, no car except the last one on the train experienced any difficulty in passing over the switch on the return trip immediately preceding the accident. And even more significant is the undisputed fact that, on this return trip over the switch, even the front wheels of this very car passed over the switch without difficulty.
Milo Gray, safety director for Weirton Steel Company, arrived at the scene and inspected the switch about forty-five minutes after the accident occurred. As a witness for the plaintiff, he testified that a “tie rod” or “dog” in the switch mechanism was broken; that it was beneath the metal plate and was, therefore, not visible and could not have been discovered except by operating the switch; that the train consisted of the locomotive and nine cars; that the locomotive and all but the two last cars had been moved from the scene when he arrived; and that Weirton Steel Company’s transportation track gang maintains and inspects the tracks and switches. In reference to the “tie rod” or “dog” which was broken and which caused the switch to become defective, he gave the following testimony which I consider highly significant: “* # * We don’t know when this dog was broken. We don’t know how long it was broken. ’ ’ In the light of this testimony, I believe a very reasonable inference to be drawn from the evidence in its entirety is that the switch became broken between the time the front wheels of this last car of the train passed over the switch and the time *729the rear wheels of the same ear passed over the switch.
James H. Baird, Jr., one of the five members of the train crew, was acting as flagman at the time of the accident. As a part of his duties, he determined that the last two cars were properly coupled to each other before the train commenced its outward trip. He was asked the following questions and gave the following answers:
“Q. Did you check the switch prior to pulling out?
“A. Yes, I did.
‘ ‘ Q. And you did not notice anything wrong with it?
“A. The switch looked all right to me.
“Q. Did you test it?
“A. I had no occasion to test it. I had no reason to test it.
“Q. You just looked at it visually?
“A. Yes.”
It is undisputed that the train was traveling at a speed of not more than two or three miles an hour at the time of the accident, and that this was a reasonable speed under the circumstances.
For reasons stated, I believe the Court has erred in this case in holding the railroad company to a duty and a basis of liability substantially, if not wholly, in accordance with the rule of the Carrico ease, which involved a carrier-passenger relationship.
I believe that the Court is in error also in not clearly defining the duty which the railroad company owed to the plaintiff in the circumstances of this case as a duty to exercise reasonable care. Inasmuch as the trial court treated the case as one governed by principles stated in the Carrico case, it follows, of course, that on the question of causation, the trial court did not *730appraise the evidence on the basis of a duty of reasonable care; and it follows, therefore, that a factual determination of the question of reasonable care was not made in the trial court, either by the court or the jury. I would reverse and remand the case for a new trial on the basis of a duty of due care, because this Court in the exercise of its appellate jurisdiction, will not decide nonjurisdictional questions which were not considered and decided and which should have been decided in the trial court. Work v. Rogerson, 149 W. Va. 493, 510, and pt. 11 syl., 142 S. E. 2d 188, 199.