137 Va. 516 | Va. | 1923
delivered the opinion of the court.
This is an action to recover damages for a personal injury inflicted upon the plaintiff as a result of the alleged negligence of the servants of the defendant railway company.
At the point of the accident the railroad and the public road run practically parallel with each other and are separated only by twenty-five or thirty feet. The public road varies in width from ten to fourteen feet, runs along the base of a mountain, and is four or five feet above the grade of the railroad. A private road leading from the public road crosses the railroad a short distance east of the scene of the accident, and there is a trestle in the railroad, which is often used by foot passengers, a short distance east of this private crossing. The public road crosses the railroad about 390 feet west of the scene of the accident. The distance between the public crossing and the private crossing is about 348 feet, or about 150 yards. Just opposite the scene of the accident there is a tennis court on the south side ofthe railroad for the use of the colored employees of theHot Springs Hotel Company. It is a short distance from the railroad, and there are four or five piles of railroad ties between the tennis court and the railroad. On the day of the accident, the plaintiff’s brother invited the plaintiff to ride home with him in his one-horse wagon, which invitation was accepted. At the point where he got into the wagon there is a curve in the public road and the view of the railroad is obscured by the freight depot of defendant. As they came in view of the railroad, a freight train going east towards Hot Springs was approaching up a heavy grade. They continued driving west, meeting the train, and the horse showed no signs of fright. When the cab of the engine was directly
The horse that was attached to the wagon was nine years old at the time of the accident. The defendant proved that when he was three years old, and hardly bridle-wise, he had run away two or three times. The defendant then offered a witness to prove that the horse was “a wild horse, a run-away, and liable to run upon the least occasion.” The witness testified that he had known the horse practically ever since he was a colt, had seen him at work, had never seen him seared, but that he did not know anything about the character of the horse except what he had heard other people say. Counsel for the defendant then asked the witness to “state what that horse’s reputation was?” Counsel for tb.8 plaintiff objected to the question, and the court sustained the objection on the ground “that you cannot prove by reputation whether a horse is scary or not,” but said that the fact might be proved by any witness who knew it. To this ruling of the court the defendant excepted, and this constitutes the first assignment of error.
We deem it unnecessary to say more than that the sounding of the whistle, in the manner shown by the testimony, within thirty feet of the horse was sufficient to frighten even a horse of ordinary gentleness, and the reputation of the horse was immaterial.
“Tbe court instructs tbe jury tbat tbe statute does not require tbe railway company to give a crossing signal by engine whistle at any point between tbe county road crossing and tbe private road crossing near tbe freight depot; and if tbe jury believe, from a preponderance of tbe evidence, tbat the blowing of tbe whistle between those points was done in an unusual and unreasonable manner, or was not reasonably requisite for tbe prudent and reasonably safe operation of tbe train, and tbat tbe blowing of tbe whistle between said points, in tbe manner, or under tbe conditions aforesaid, caused W. M. Allen’s horse to run off and plaintiff to be thrown out of tbe vehicle and injured, and damaged, then tbe railway company is liable for damages thus sustained by tbe plaintiff.
“But if, under all tbe evidence, tbe jury believe tbat it was reasonably requisite for tbe prudent and reasonably safe operation of tbe train, or for tbe reasonable safety of persons near tbe track, to blow tbe whistle between tbe points aforesaid, and tbat tbe whistle was sounded in a reasonable manner for these purposes, and tbe horse was thereby frightened and ran off, then tbe railway company is not liable for any injury resulting to tbe plaintiff therefrom.”
Tbe defendant excepted to tbe giving of this instruction, and tbe ruling of tbe trial court constitutes tbe second assignment of error. Tbe objections to the instruction are (1) tbat tbe statute as to crossing signals was foreign to any issue made by tbe pleadings; (2) tbat there was no evidence as to what was- unusual and customary, and tbe “instruction leaves it to tbe fancy of tbe jury at its pleasure to determine whether tbe
“A railroad company may sound its whistle either to warn persons likely to come on its tracks, or to direct its employees in the operation of its trains. The two purposes are entirely distinct, and either is permissible and lawful. The defendant here, however, is required to give the signal for the joint purpose, or not at all.”
The instruction was given in two paragraphs. The first in effect directing a finding for the plaintiff, and the second a finding for the defendant. The first three objections are directed to the first paragraph and the fourth to the second paragraph. The instruction, of course, is to be read in the light of the evidence, and
It was proper, or certainly not to the injury of the defendant, to instruct the jury to what crossing the statute requiring signals to be given applied, and to what it did not apply. The second objection'is without merit. Courts constantly have to refer to juries the question of what is reasonable conduct, or reasonable prudence, under all the circumstances of the casé, with no other guide than their own judgment and conclusion as reasonable men. The defendant, in instruction X asked by it, submitted a similar question to the jury. The answer to the third objection is much the same as that to the second. The reasonably safe operation of the train referred to must, in view of the testimony, be held to mean safety of third persons and not operatives on the train. The instruction plainly referred to the improper and unnecessary blowing of the whistle as it affected the plaintiff. The fourth objection is one by the defendant to an instruction directing a verdict in its own favor. This branch of the instruction is not accurately expressed, but it is quite plain that it was intended to be put in antithesis, to that which had gone before and to say to the jury, if they believed it was reasonably necessary to sound the whistle, for either of the purposes mentioned and it was sounded in a reasonable manner, then the company was not liable. We do not think the jury could have been misled by it. The instruction correctly stated the law as laid down in Southern Ry. Co. v. Torian, 95 Va. 453, 28 S. E. 569, and Petersburg R. Co. v. Hite, 81 Va. 767. If the view here suggested by counsel for the defendant had been taken by counsel for the plaintiff in the trial court, it could, and would doubtless have been, corrected by the
The next assignment of error relates to instruction X tendered by the defendant, which the court changed and gave in its altered form as instruction No. 4. The instruction as tendered was as follows:
“The court instructs the jury that the mere fact that the plaintiff, Allen, was injured through the Allen horse being frightened by the defendant’s engine whistling, does not entitle Allen to recover any damages in this case. The plaintiff can recover nothing unless h© has proved by the greater weight of the evidence, and to the jury’s satisfaction, that the defendant’s engineer blew the whistle where and when and as a reasonably careful engineer would not have blown the whistle, if operating his engine in a reasonably careful manner.”
The alteration consisted in striking out the words in italics, and substituting therefor the words “a reasonably careful man in his situation.” Exception was taken to the alteration. We would probably have been satisfied with the instruction as tendered, but a careful consideration of it satisfies us that the trial court committed no error in making the alteration. It is criticized on the ground that “the test of negligence in such a case is the conduct of the ‘reasonably careful engineer’ not the conduct of the average man of ordinary prudence, regardless of his skill, experience or knowledge of driving locomotive engines.” It is further said:
“The test of reasonable care in a surgical operation is not the conduct of a ‘reasonably careful man’ in the surgeon’s situation; it is the conduct of the ordinarily careful surgeon. In an accident occasioned by the al*524 leged misuse of machinery or tools, the test of due care is the care to be expected of the reasonably careful mechanic in that line of work-;—not of a ‘reasonably careful man in his situation.’ Whether an engineer exercised reasonable care in applying or not applying his brakes when his engine was about to go into a collision, or in letting water into his boiler during a run, is to be determined by whether a reasonably careful locomotive engineer—not a ‘reasonably careful man in his situation’—would have applied the brakes or would have fed water into his boiler when and as the engineer’ concerned did; only experience and skill can determine for the man operating the engine whether it is safe under given conditions to apply brakes, or to let water into a boiler.”
But neither skill nor experience was required to determine the proper action to be taken by the engineer. The question involved was: “Was it reasonably necessary or prudent for the engineer to sound the whistle when, where and under the circumstances he sounded it, and this was to be determined by what would have been the conduct of a reasonably prudent man under like circumstances. If we paraphrase the instruction as given it would read: “The plaintiff can recover nothing unless he has proved, by the greater weight of evidence, and to the satisfaction of the jury, that defendant’s engineer, while operating his engine and train in a reasonably careful manner, blew the whistle where, when and under such circumstances as a reasonably careful man in his situation would not have blown the whistle.” We are unable to see how the defendant could have been injured by the alteration. The argument of the counsel for defendant is sound enough in cases involving the exercise of skill and experience, but has no application where, as here, no such question is involved.
The nature and extent of the plaintiff’s injuries were such that it is unnecessary to discuss the assignment of error that the damages allowed are excessive. Chesapeake & Ohio Ry. Co. v. Fortune, 107 Va. 412, 59 S. E. 1095.
The judgment of the trial court will be affirmed.
Affirmed,.