91 Va. 171 | Va. | 1895
delivered the opinion of the court.
Wiley B. Johnson was killed on the 30th day of October, 1893, while on the track of the Chesapeake and Ohio Railway Company, by one of its freight trains, and this suit was brought by his administrator to recover damages from the railway company for the death of Johnson.
At the trial, after the evidence on both sides was closed, the defendant demurred to the evidence, and the court compelled the plaintiff against his protest to join in the demurrer. The amount' of damages was thereupon inquired of by the
The first question presented for review was the action of the court in compelling the plaintiff to join in the demurrer to the evidence. It was earnestly contended by the counsel for the plaintiff in error, both in their printed and oral arguments, that the court erred in compelling the pla.iut.ifF to join in the demurrer and thus take away from the jury, the proper triers of facts, the question of negligence, which was the result of this proceeding. The propriety and validity of the practice of demurring to the evidence is too well settled in Virginia and has been too often approved by this court to be now seriously questioned. It was elaborately discussed and maturely considered in Trout v. Va. and Tenn. R. R. Co., 23 Gratt. 619, where Judge Moncure, the president of the court, reviewed the cases in Virginia on this subject, sustained the practice, and defined the rules which govern it. It was there held that either party has the right to demur to the evidence, except where the evidence is plainly against him, or the court doubts what facts should be reasonably inferred from the evidence demurred to; and where a party has the right to demur, it is the duty of the court to compel the other party to join in the demurrer.
The suit of Trout v. Va. and Term. R. R. Co., supra, was brought to recover damages for the negligent killing of the stock of the plaintiff by the railroad company, and, like this case, the ground of the action was the negligence of the defendant. It was nevertheless held that this was no reason why a party should not be permitted to demur to the evidence, and that the fact of negligence constituted no excep
This brings us to the consideration of the demurrer to the evidence, and the review of • the judgment given thereon by the court below. The rule applicable thereto is well settled and familiar. By the demurrer, the party demurring is considered as admitting the truth of his adversary’s evidence, and all just inferences which can be properly drawn therefrom by a jury, and as waiving all of his own evidence which conflicts with that of his adversary, and all inferences from his own evidence (although not in conflict with his adversary’s) which do not necessarily result therefrom. 4 Minor’s Institutes, Pt. I, p. 831; 1 Barton’s Law Pr. pp. 676-79; Trout v. Va. and Tenn. R. R. Co., 23 Gratt. 619; and Richmond & Danville R. R. Co. v. Anderson’s adm’r, 31 Gratt. 812.
The evidence shows that Johnson was struck and killed between nine and ten o’clock in the morning, on the track of the Chesapeake and Ohio Railway Company, by one of its freight trains, about fifteen feet from the place where the public highway crosses the track of the railroad, at the depot in the village of Howardsville, in Albemarle county, and where persons on foot were in the habit of crossing the railroad without objection from the company. The track at that place runs nearly east and west, and the train was going east. It was composed, besides the engine and tender, of forty-five loaded freight cars and a caboose car. Thirty-two of the cars were equipped with air brakes, which were in good order and
At the time the whistle was blown for the station, Johnson . was standing at the gate of his son-in-law, S. S. Bugg, where he had been talking with Eldridge Turner, who walked to the south side of the track and engaged in conversation with Dr. Hash and Jos. B. Hoel, two of the witnesses for the plaintiff. Hear Johnson and Turner, where they were talking, was the buggy of a Mr. Pulling, with a young man sitting in it. Pulling was on the south side of the track, and when he heard
Bugg’s gate was, according to measurement, one hundred and five feet north of the track of the railroad where the public road crosses it; and from the gate to the crossing, the view of the track and of any train moving upon it from the west was wholly unobstructed for two hundred and sixty-five yards, so that by the use of his faculties Johnson could have clearly seen the train as it approached the crossing, and the engineer and fireman could have seen him for the same distance, after he came within fifteen or twenty feet of the track, if they were at their posts and performing their duties. After Johnson was seen standing at Bugg’s gate, his movements seem not to have been observed by any one until the train was approaching the public crossing and station, when he was seen walking slowly in the direction of the track. ITe continued to walk on towards the track and stepped upon it, as if to go across it. He was then in front of the train as it approached the crossing, and before he could clear the track he was struck and instantly killed. These were the circumstances, so far as they are material, under which he met his death, and the inquiry is whether the defendant is liable therefor in damages.
If the death of Johnson was caused solely by the negligence of the defendant, there can be no doubt of the right of the plaintiff to recover damages therefor. If, however, the proximate cause of his death was his own negligence concurring with the negligence of the defendant, there can be no recovery. But although the deceased may have been guilty of negligence, and that negligence may, in fact, have contributed to the accident, yet, if the defendant could, in the result, by the exercise of ordinary care and diligence, have prevented
It was claimed by the counsel for the plaintiff in error that the defendant was negligent in running a train as long and heavy as this one was through a village of the size of Howardsville, which contained from one hundred and fifty to two hundred inhabitants, at a high rate of speed without having more than two brakemen and air brakes cn all the cars. There was no evidence on the part of the plaintiff to show that the train did not have the necessary brakemen and air brakes to control it as occasion or emergency might require, or that it was not under perfect control; while it. was proved by the defendant that the brakemen and the air brakes were fully sufficient to handle and control it.
But the* main contention of the counsel for the plaintiff was that the defendant was guilty of negligence in that, as they claimed, the whistle vas not blown and the bell rung as the train approached the crossing. While at the time this accident happened there was no statute in this State which required the whistle to be blown as a train approached a public crossing, as is now the case (act approved March 5, 1891), yet it was then required that a railway company should give notice of the approach of its trains to a public crossing, and if it failed to do so and injury resulted from such failure, it would be liable therefor. It is not shown that the approach of the train to the crossing where Johnson lost his .life was not announced both by the whistle and bell. The witnesses for the plaintiff only testified that they did not hear either the whistle or bell. Whether this was from inattention, or
While it was the duty of the defendant to give notice of the approach of the train to the crossing, and it thus appears that this was done sufficiently to warn persons who, like Johnson, were in proximity to it, there were also reciprocal duties imposed on him. He could not go upon its track even at a public crossing, or a licensed way, without exercising ordinary care and caution. The track itself was a proclamation of danger. It was his duty before going upon it to use his eyes and ears. He should have both looked in either direction from which a train could come, and listened; and if his faculties warned him of the near approach of a train, it was his duty to keep off the track. H he had done so in this instance he could not have failed to hear and see the coming train, and be made sensible of the danger of going upon the track. It was in plain view. And if he failed to look and listen, as duty required of him, and attempted to cross the track in front of a rapidly moving train, and was caught before he could get across and was killed, his own act, his own negligence, so contributed to the injury, that a recovery therefor cannot be sustained. N. Y., P. & N. R. R. Co. v. Kellam’s adm’r, 88 Va. 851; Mark’s adm’r v. Petersburg Railroad Co., 88 Va. 1; N. & W. R. R. Co. v. Stone’s adm’r, Id. 310; Grand Trunk Railway Co. v. Ives, 144 U. S. 408 and 431; 4 Amer. & Eng. Enc. of Law, 68-78; Ernst v. Hudson River Railroad Co., 39 N. Y. 61 and 68; Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Chicago & St. Paul Rwy. Co., 114 U. S. 615; Wendell et al. v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420, 428; The Maryland Central R. R. Co. v. Conrad Aeubeur, 62 Md. 391, 400; Gothard v. Ala. G. S. R. R. Co., 67 Ala. 115; Hogan’s
Only four witnesses testified to the movements of the deceased, which immediately preceded the accident. The witness, John Johnson, who testified for the plaintiff, was standing on the platform of the depot, and saw the deceased when he approached the track and was struck by the engine. He stated, in his examination-in-chief, that when the deceased made the attempt to go across the track, the train was about one hundred yards from him, as near as the witness “could come at it;” and on cross-examination, he admitted that the engine was so close to the deceased, when he started to go upon the track, that the witness thought that he was bound to be killed if he went on the track; and that when he got on the track he was so close to the train that he thought it was impossible to stop it in time. It was manifest from the evidence of this witness, who was the only witness for the .plaintiff who saw Johnson when he was struck and killed, that the train was quite near the .crossing and to Johnson when he started to go across the track. While the witness thought the train was then about one hundred yards away, it appears that he was not and could not be certain of the distance, but was certain that Johnson would be killed if ne went on the track and that the train could not be stopped so as to prevent it.
There were three witnesses for the defendant who saw Johnson at the time the accident occurred and their evidence is not in conflict with that of the witness Johnson. E. S. Wilkinson, the depot agent, and T. A. Jones, the section master, were in the telegraph office when they were apprised of the approach of the train. They looked in the direction from which it was coming, and it was then in sight. While looking at it they saw the deceased walking directly toward the
Upon the face of the eAndence, under the strict rule applicable to its consideration, it conclusively appears that the deceased, by his OAvn negligence and recklessness, directly and proximately contributed to the act which • caused his death, and that it Avas not in human poAver to save him after it took place. lie was the author of his oavu misfortune.
If the evidence of all the persons Avho were eye-Avitnesses to the unfortunate accident and have testified in this case, except that of John Johnson, Avho testified in behalf of the plaintiff, is Avholly laid out of view, his testimony establishes beyond all question such contributory negligence on the part of the deceased as to preclude all recovery of damages for his
For these reasons the court below did not err in sustaining the demurrer to the evidence, and in giving judgment in favor of the defendant.
The plaintiff being; therefore, precluded by the contributory negligence of his intestate from recovering damages from the defendant, he was not prejudiced by the refusal of the court to allow the witness to answer the question which is 'the subject of the first bill of exception, nor by the refusal of the court to give to the jury the instructions asked for by the plaintiff after the joinder in the demurrer to the evidence; and consequently it is unnecessary to pass upon them.
The judgment of the Circuit Court of Albemarle county is therefore affirmed.
Affirmed.