Johnson's Adm'x v. Richmond & Danville R. R.
11 S.E. 829
Va.
1890
Check Treatment
Lewis, P.,

delivered the opinion of the court.

*978It wаs very properly conceded in the argument that the instruction given by the circuit court is errоneous. The theory of that instruction is that the fifth clause of the written agreement, although it, in effеct, stipulates for exemption from liability even for the consequences of the cоmpany’s own negligence, is notwithstanding valid, and consequently precludes a recovery by the plaintiff, whether the company was negligent or not. It would be strange, indeed, if such a doctrine could be maintained. To uphold the stipulation in question, would be to hold that it was competent- for one party to put the other parties to the contract at the mercy of its own misconduct, which can never be lawfully done where an enlighten éd system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void. Eothing is better settled, certainly in this court, than that a common carrier cannot by contract exempt himself from responsibility for his own or his servants’ negligence in the carriage of goods or рassengers for hire. This is so independently of section 1296 of the Code; and the principle which vitiates a stipulation for exemption from liability for one’s own negligence, is not confinеd to the contracts of carriers as such; it applies universally. Cooley, Torts, p. 687; 2 Thomp., Neg., 1025; Roesner v. Hermann, 10 Biss., 486; Railway Co. v. Spangler, 44 Ohio St., 471.

The circuit court also erred in refusing to give to the jury the first instruction offered by the plaintiff. The substance of that instruction was that if the jury believed from the evidence that the defendant рromised or assured the firm that its trains would not pass the bluff, while ‍‌‌‌‌​​​​​​​‌​‌​​‌‌‌​​‌‌​​​​‌‌‌‌​​‌​​‌​​​​​​‌​‌​​‍the work of removing it was going on, at a highеr rate of speed than six miles an hour, and that Johnson’s death was caused by a violation оf such promise, without fault on his part, they should find for the plaintiff. This instruction is clearly right, and ought to have been given.

The important part of the second instruction was, that if the jury believed from the evidence that the defendant violated its *979promise or assurance, as set out in the first instructiоn, and that in consequence thereof the deceased rushed forward to prevent оne of his employees from wheeling his barrow ‍‌‌‌‌​​​​​​​‌​‌​​‌‌‌​​‌‌​​​​‌‌‌‌​​‌​​‌​​​​​​‌​‌​​‍on the track, or to remove the plank between the rails, and in the attempt to do so, was struck and fatally injured by the train, they should find for the plaintiff.

The principle upon which it is contended that this instruction ought to have been given,, is, that when one risks his life, or places himself in a position of danger, in an effort to save the life of another, or to protect another who is exposed to a sudden peril, or in dangеr of great bodily harm, such risk for such a purpose is not negligence. Beach, Cont. Keg., seс. 15. But while there is no question as to the principle here contended for, the objectiоn to the instruction is, that it does not leave it to the jury to say whether the employee, or аny other person, on the occasion in question, was in such a position of danger as to bring the case within this principle. There was no error, therefore, in refirsing to give the instruction in the form in which it was offered. The court, however, should have modified it to suit the case, and then hаve given it as modified, as its total rejection -was calculated to mislead the jury. Peshine v. Shepperson, 17 Gratt., 472; Alexandria Sav. Inst. v. McVeigh, 84 Va., 41.

The third and fourth instructions offered ‍‌‌‌‌​​​​​​​‌​‌​​‌‌‌​​‌‌​​​​‌‌‌‌​​‌​​‌​​​​​​‌​‌​​‍by the plaintiff, were as follows:

“ 3. Gontributory negligence is a matter of defence, and the burden of proving the same is upon the defendant.
“4. If the jury find for the plaintiff they may аssess the damages by fixing the same at such a sum, not to execed §10,000, as would be equal to the probable earnings of the deceased, taking into consideration the age, business capacity, experience ‍‌‌‌‌​​​​​​​‌​‌​​‌‌‌​​‌‌​​​​‌‌‌‌​​‌​​‌​​​​​​‌​‌​​‍and habits, health, energy, and perseverance of the deceased during what would probably have been his lifetime, if he had not been killed, and by adding these to the value of his services in the superintendence, attention to, and care of, *980liis family, and the education of his children, of which they have been deprived by his death.”

It is conceded in the brief of counsel for defendant in error,, that these instructions propound “ undoubtеd law.” But it is contended that the plaintiff has not been prejudiced by the refusal to give them, nor by the giving of the instruction that was given, because, upon the evidence, the case is cleаrly with the defendant. This position is untenable. ‍‌‌‌‌​​​​​​​‌​‌​​‌‌‌​​‌‌​​​​‌‌‌‌​​‌​​‌​​​​​​‌​‌​​‍The evidence is not fully certified in the bill of exceptions, but only so much thereof as was supposed to be necessary to show the relevancy of the instructions offered; and looking to that, it is very clear that the case was not properly submitted to the jury, and that, the judgment must be reversed, and the case sent back for a new trial.

Judgment reversed.