103 Va. 99 | Va. | 1904
delivered the opinion of the court.
George A. Pierce, the plaintiff in the court below, was em
Upon the first trial there was a verdict in favor of the plaintiff, which the court set aside upon motion of the defendant company. At the next trial, the defendant company demurred to the evidence, which was the same as on the former trial. The court, a different judge presiding, overruled the demurrer and rendered judgment in favor of the plaintiff for the damages found by the jury in their conditional verdict, and to that judgment this writ of error was awarded.
' Upon the threshold of the case, it is suggested by the plaintiff that the defendant company has made the demurrer to evidence a part of the record by a bill of exception, and that this cannot be done under the decision of the court in the case of C. & C. Ry. Co. v. Sparrow, 98 Va. 630, 37 S. E. 302.
That case did decide that no bill of exception to the ruling of the court on a demurrer to evidence was necessary to enable this court to review such ruling, because a demurrer to evidence, like a demurrer to a pleading filed in the cause, is a part of the record. But it was not intended to hold, nor was it held, in that case, that the filing of such a bill of exception (a wholly unnecessary act, and a practice which should not be permitted, because it unnecessarily encumbers the record, and adds to the cost of copying and printing it), would prevent this court from reviewing the ruling of the court upon the demurrer to the evidence.
The errors assigned are, (1st) that the evidence, considered as on a demurrer to evidence, does not show that the plaintiff’s injuries were the result of the defendant’s negligence, and (2d) even if they were, the plaintiff was guilty of contributory negligence.
It appears that the plaintiff was one of two employees of the
On the night of the accident, just before midnight, as an east-bound passenger train, about 300 feet long, was approaching the station, the plaintiff and the other inspector, who were standing near the baggage-room, after the arrival of the train had been announced, started together in the direction from which the train was coming to perform their duties. The plaintiff, whose mental faculties were impaired by the injuries complained of, does not give a very intelligible account of the accident. His evidence tends to prove that as the passenger train came in he looked in both directions for engines on the westbound track, and seeing none he stepped upon or across that track and was engaged in his work of inspection, when some one hallooed to him to get out of the way of the yard engine;
Two of the plaintiff’s witnesses testified that the usual place for car inspectors to stand, when inspecting east-bound trains, was on or near the inner rail of the west-bound track, and that when in that position they were in danger from trains passing on that track. One of these witnesses testified that he was standing on the station or depot platform the night of the accident; that when he first saw the plaintiff he was standing on the track with his wrench and hammer in one hand and his torch in the other inspecting the cars, and when the engine and about four coaches had passed him some one hallooed at him, and as he faced the depot the yard engine came by, striking* and dragging him to the upper end of the platform; that the yard engine was running backward at the rate, as he thought, of from twelve to fifteen miles an hour.
Another of his witnesses testified that the engine was running at least fifteen miles an hour.
The expressman had his trucks on the west-bound track at the east end of the platform, between the point where the plaintiff was injured and the j>oint from which the engine came, which had to be removed before the engine could pass. The switch engine and the passenger engine met about midway of the station platform, the latter running about four miles an hour, making considerable noise, and the former, according to the plaintiff’s evidence, from twelve to fifteen miles an hour.
The evidence of the defendant company tended to prove that the plaintiff’s position for inspection was on the opposite side of the train from where he was injured; that there was no necessity, in inspecting the train, for him to go upon the track or into a place of danger; that his first duty was to look out for his own safety, as switch engines might be expected at any time on the yard; that the plaintiff stepped upon the track 10 or 15 feet ahead of the yard engine running at the rate of eight or ten miles an hour; that it was not running in violation of any rule of the company; that its bell was ringing from the time it started until the accident occurred, and that a lookout ahead was kept.
Upon all the evidence in the case, the jury might have believed that the defendant company was running its yard engine at the time of the accident, if not in violation of its rule, at least in violation of the usual manner in which it ran it, and gave warning of its approach on that track, when a passenger train was on the other track; that the plaintiff was at the usual and proper place for inspecting cars, having no reason to expect that a yard engine would be running on the track at that time; and that his danger could have been seen and the accident
We are, therefore, of opinion that the Circuit Court did not err in overruling the demurrer to the evidence, and that its judgment must be affirmed.
Affirmed.