108 Va. 691 | Va. | 1908
delivered the opinion of the court.
This action was brought to recover damages for the death of the plaintiff’s intestate, caused, as alleged, by the negligence of
On the 9th of August, 1906, about 10 o’clock at night, the dead body of Albert E. Harlow, nineteen years of age, was found lying on the right of way of the defendant company a short distance beyond Augusta Springs, a station about twenty miles west of Staunton. The skull of deceased was crushed back of the left ear, and his neck broken. A short distance west of the point where the body was lying, a part of a set of passenger coach steps was found. Shortly before the body of the deceased was discovered, between half-past nine and ten o’clock, the through passenger train, limited, going west from Jersey City to Cincinnati, passed the point in question, running from thirty-five to forty miles an hour. It was a dark night and a slight rain falling. The theory of the plaintiff is that the deceased was walking from the. Augusta Springs station, west, to his home, which was near the railroad,- and that the steps of the car were loose, and negligently allowed to swing out from the side of.the car; that these steps, thus swinging out, struck the deceased as the train passed and caused his death.
The record shows that the relation of the deceased to the defendant was that of a bare licensee; he, together with others, having used the right of way at that point as a walkway from their homes to the station, with the knowledge and acquiescence of the company.
It is properly conceded that a railroad company does not owe the duty of prevision or jxrevious preparation for the protection of a bare licensee upon its track or road bed. Williamson v. Southern Ry. Co., 104 Va., 146, 51 S. E. 195, 113 Am. St. Rep. 1032, 70 L. R. A. 1007.
A bare licensee is only relieved from the responsibility of being a trespasser, and takes upon himself all ordinary risks attached to the place and the business carried on there. N. & W. Ry. Co. v. Wood, 99 Va. 156, 37 S. E. 846.
There is nothing in the testimony of the Basic City witness to bring home to the defendant the slightest knowledge that the steps were out of order. This was a dark night. As already stated, the train was a through passenger train going west from Jersey City to Cincinnati. It made, but few stops — one at Charlottesville, a divisional point forty miles east of Staunton. The uncontradicted evidence is that the train was inspected at Charlottesville and everything reported to be in order. The evidence of the two Staunton witnesses is positively denied by the conductor and others, who testify that a number of persons alighted over the steps in question that night at the Staunton station. Placing the coach at the point where it is put by these two witnesses, it is difficult to understand how they could have seen what they claim through a high iron railing from the position in which they place themselves. Accepting, however, their evidence as true, we are of opinion that it fails to bring
The judgment of the circuit court, sustaining the demurrer to the evidence, is without error and must be affirmed.
Affirmed.