102 Va. 914 | Va. | 1904
delivered the opinion of the court.
This action was brought in the Circuit Court of the county of Washington by the administrator of W. P. Richards, deceased, against the Virginia-Carolina Railway Company, to recover damages for the death of plaintiff’s intestate, caused, as alleged, by the negligence of the defendant company. The declaration contains seven counts, and the defendant company demurred to it and to each count thereof, which demurrers were sustained, and a final judgment rendered in favor of the defendant company. To this judgment this writ of error was awarded.
Substantially, the allegation of the first count in the declaration is, that the defendant company was possessed of certain engines and cars, used and employed in carrying passengers and freight along the line of its railway in Washington county, Virginia, and that, on the 10th day of November, 1901, the de
In B. & O. R. R. Co. v. Whittington’s Admr., 30 Gratt. 805, the same judges who decided the case of B. & O. R. R. Co. v. Sherman’s Admr. evinced an apprehension that they had gone further in that case than in principle they should have gone. The only material difference between the declarations in the two cases is that in the last named the place where the alleged negligent act was committed is designated, while in the first named it is not; and the first count in the declaration in the case at bar is in form and substance the second count in the declaration in the Whittington case, where, in the opinion by Staples, J., sustaining a demurrer to that count, it is said: “Row whether the plaintiff’s intestate was at the time a passenger on the train, and received his injuries as such, or whether he was an employee of tiie company, and was injured while engaged in its service, or whether he was a stranger crossing the track of the company’s road, or whether he was on the track at all, or in the cars, or at the station, or in what manner he was injured, the declaration does not inform us. It was impossible for the defendants to learn from this declaration the grounds upon which plaintiff was proceeding. The declaration amounted to an averment simply that the plaintiff’s intestate was injured by the negligence of the defendants in the operation of their business in using and em
The language just quoted applies with all of its force to the first count of the declaration here under consideration, and is inapplicable to the declaration in the Sherman case only in one particular, viz.: the fact that the declaration in the last-named case states that Sherman, the person injured, was on the trade of the defendant at the time of his injury, while the first count in the declaration at bar utterly fails to designate where plaintiff’s intestate was when he received the alleged injuries from which he died, and in this failure, at least, to designate the place, it is different from the declaration in the Sherman case, and conforms to that in the 'Whittington case.
The second count states that on the day of the alleged accident, plaintiff’s intestate was on a certain pump or hand-car, which was then and there being used on the said railroad, with the knowledge and consent of the defendant company, etc.
In the first-named case (which was similar in many respects to the case at bar) the opinion by Buchanan, J., says: “It has been held in several cases by this court that it was not necessary in cases like this to aver in terms the relation which existed between the plaintiff and defendant at the time of the injury (though that is clearly the better practice), but that it is sufficient if such averments are made as to the circumstances under which the plaintiff was injured as will show the existence of the duty which it is averred has been neglected, and which neglect has caused plaintiff’s injury.” In other words, the declaration must show that, from the relation existing between the plaintiff and the defendant, a legal duty was owing from the latter to the former, the failure to discharge which caused the injury for which the action is brought, or make such averments as to the circumstances under which the plaintiff was injured as will show the existence of the duty which it is claimed has been neglected, and which neglect has caused the plaintiff’s injury.
The third count in the declaration under discussion differs from the second in two particulars: (1) In the addition that on the day named, etc., plaintiff’s intestate had been hurt, and placed or laid on the hand-car, and (2) in the omission to state that the hand-car was out, and being run on the defendant company’s track, with its consent. This omission is material. The fact that the plaintiff’s intestate had been hurt and placed on the hand-car cannot enlarge the responsibility sought to“ be laid at the door of the defendant company, unless this fact was known.to the company, and it is not averred that it was so known. It might be true that the defendant company had knowledge that the hand-car was out on the day named, but at the same time it might also be true that this hand-car had been taken without the company’s consent, and run out on its track
The negligence charged in the fourth count is that it was the duty of the defendant company to have its engines equipped with ordinary and proper appliances, so that said engines could and would be under the iaaamediate control of the engineer, whereby the said engines shoaald not be run upon and against plaiaatiff’s intestate, etc.
Conceding the existence of this ríale, the only statement ioa the count that the appliances were not safe and proper is by way of recital, and not by a positive averment. Nor is there sufficient averment that the failure to have safe and proper appliances was the cause of the accident; nor that the engineer could, with proper appliances and the use of the same, have stopped the engine in question after discovering plaintiff’s intestate upon the track. Had the averments, however, been sufficient to show a failure on the part of the defendant company to discharge the alleged
In support of this count, counsel for the plaintiff cite the cases of Richmond Ry. & Elec. Co. v. Gathright, 92 Va. 627. 24 S. E. 267, 32 L. R. A. 220, 53 Am. St. 839, and Thompson v. Salt L. R. T. Co. (Utah) 67 Am. Rep. 621, 52 Pac. 92, 40 L. R. A. 172, 67 Am. St. 621, but all that need be said of these cases is that they are wholly unlike the case under consideration, since the accident in each occurred on the streets of a city, where pedestrians had equal rights with the railroad companies. The principles which govern that class of cases have been very fully and clearly set out in the opinion of this court by Buchanan, J., in Bass’ Admr. v. N. Ry., &c. Co., 100 Va. 1, 40 S. E. 100.
The fifth count of the declaration under consideration proceeds upon the idea that it was the duty of the defendant company not to run its engines at such an unusual rate of speed, or at a time different from the schedule of any train running in the same direction, and passing the point at which the alleged accident happened, or if so run, it was the duty of the defendant company to have given notice of the change of running said engine, so that it should not be run upon plaintiff’s intestate, &c.
When commenting upon such regulations as are referred to in this fifth count, Moncure, P., in B. & O. Ry. Co. v. Sherman’s Admr., supra, says: “They are adopted for the conven
In support of the fifth count several cases are cited, and we will review them, as far as we deem it necessary, in the order cited. As to the first (B. & O. R. Co. v. Whittington) it need only he said that the party injured was an employee of the defendant company. In the second (Roberts v. A. & F. R. Co., 83 Va. 314, 2 S. E. 518), the party injured was a traveler upon the highway, just about to cross the railroad track at a highway crossing, and the court rightly held it to be “negligence to run an unscheduled train at an extraordinary speed across a public highway without signaling its approach by bell and whistle.” The principles laid down in that case, as well as in the case just before mentioned, are wholly inapplicable to the case at bar, where the party injured was where he had no right to be, or was, at most, a bare licensee. A wholly different rule as to the duty of the railroad company to the parties injured applied to the two cases named, from that applicable to the case at bar. The third case cited is L. & W. R. Co. v. Hall (Ga.), 35 S. E. Rep. 159. In that case the ruling was not upon the sufficiency of the declaration, but only upon the refusal of the lower court to direct a verdict in favor of the defendant and upon an instruction given. The sufficiency of the declaration seems not to have been called in question. The fourth and last case cited is Ashworth v. Southern Ry. Co. (Ga.), 43 S. E. Rep. 36. That case is clearly in accord with the decisions in this State as to the duty which a railroad company owes to a trespasser upon or about its property. True it held that the rule in such cases does not relieve the company, under all circumstances, from anticipating the presence of a trespasser upon
The sixth count in the declaration under discussion proceeds upon the idea that it was the duty of the defendant company to abstain from running its engine on the day of the injury to plaintiff’s intestate, that day being Sunday, and that the running of its engine on that day was a violation of the statute (sec. 3801 of the Code), whereby a right of action accrued to the plaintiff to recover damages of the defendant company by reason of section 2900 of the Code. In other words, that the defendant company is liable for the injury to plaintiff’s intestate, simply because the injury was by reason of the company’s engine being run on Sunday. The declaration does not state that the day named was Sunday, but merely states that it was the duty of the defendant company to abstain from running its engine on that day, and that it was so run, &c., in violation of the laws of the Commonwealth. Sec. 3801, prohibiting the running of the engines and trains of a railroad company on Sunday in this State, contains several exceptions, and granting that the court should take judicial notice of the fact that the 10th day of November, 1901, was Sunday, and conceding further, for the sake of argument, that the bare violation of the statute gave the plaintiff a right of action, his declaration is still bad on demurrer, as it does not state that- the defendant company, in the running of its engine and train on the day named, and which inflicted the injury to plaintiff’s intestate, did not come within the exceptions contained in the statute. Sec. 2900 of the Code confers no new or enlarged right upon a party injured as a result of the violation of a statute. A party suing for an injury arising from an act of a defendant, in violation of a statute, claim
The authorities cited in support of the sixth count of plaintiff’s declaration, as far as we have been able to examine them, do not sustain his contention.
The seventh count of the declaration sets out the liability of the defendant company as arising out of its failure to sound the whistle of its engine, as required by statute, before reaching the crossing, near which the alleged injury to plaintiff’s intestate occurred. What was said with reference to appliances, speed of train, etc., above, applies here. The statute was not intended to protect all persons indiscriminately, but only those upon the highway, or who are lawfully at or near a crossing of a railroad in pursuit of their legitimate business, and intending to cross the railroad, and was not made for trespassers, or even licensees. B. & O. R. R. Co. v. Sherman’s Admr, sufra; N. & W. Ry. Co. v. Wood, supra. If the view contended for by counsel for the plaintiff were correct, viz.: That the duty imposed by the statute refers to all persons who, being lawfully at or in the vicinity of the crossing, may be subjected to accident and injury by the passing of engines at that place, still the declaration is fatally defective in not stating that the plaintiff’s intestate was lawfully at' the place of his injury, or in failing to show from facts or circumstances stated that he was lawfully there. Ro rule of pleading is better settled in this State than that a declaration must inform the defendant of the nature of the demand made upon him.
This declaration is but an illustration of the extent to which the rule having its origin in B. & O. R. R. Co. v. Sherman’s Admr., supra, has led the bar of this State into relying upon loose and insufficient pleading in actions of this nature. Though not unmindful that that rule has been followed or reluctantly approved by this court in the cases cited by counsel for the plaintiff, we havq pointed out that the apprehension of the judges who sat in the case in which the rule had its origin; that the case had gone too far was soon evinced in B. & O. R. R. Co. v. Whittington, supra. In N. & W. Ry. Co. v. Joyner’s Admr., supra, the court seemed to feel constrained to approve the rule; but, in truth, there was no occasion to either follow or approve it, as the opinion clearly shows that the declaration in that case stated a good cause of action, independent of the rule. And in Birckhead v. C. & O. Ry. Co., supra, it is apparent, that the rule was sanctioned with reluctance. Be that as it may, the court, upon mature consideration, has reached the conclusion
It follows that we are of opinion that there is no error in the judgment of the Circuit Court of Washington county, complained of in this case, and, therefore, it must be affirmed.
Affirmed.