79 Va. 241 | Va. | 1884
delivered the opinion of the court:
The facts of the case, as disclosed by the record, are: that the plaintiff, George B. Ferguson, became a passenger on the 1st day of August, 1881, from Bristol to Marion on a caboose car attached to a freight train upon the Norfolk & Western railroad. When he entered the caboose, at Bristol, he took'a seat in a chair, near an open sliding side door of the caboose. The chair was the conductor’s chair, as the plaintiff knew. When the train reached Abingdon the plaintiff ascertained, from the conductor, how long a time it would stop there, and got off the train and went
The declaration, which is in due form and was not demurred to, charges that, on the 1st day of August, 1881, the plaintiff, at the special instance and request of the defendant, became and was a a passenger in said caboose, to be safely carried thereby on a certain journey from said depot at Goodson, to the defendant’sdepot at Marion, as aforesaid, for a certain fare and reward to the said defendantin that behalf, and the defendant received the said plaintiff as such passenger; and, thereupon, it became and was the duty of the defendant to use due and proper care that the plaintiff should be safely carried by the said caboose on said journey. Yet the defendant, not regarding his duty in that behalf, did not use due and proper care that the plaintiff should be safely carried by said caboose on said journey; but, wholly neglected so to do, suffered said engine and tender and cars thereto attached to be forced along said railway so rapidly, and to be managed and conducted so recklessly, unskilfully and negligently, that by reason thereof, the plaintiff was thrown from said caboose with such force and violence upon and against the ground, that he was thereby, then and there, rendered insensible, and one of his legs was broken and otherwise greatly bruised and injured, and one of his ankles was dislocated, tearing loose the ligaments on the inside of the ankle joint, and displacing all ■of the-smaller bones of the joint, and his hack and one of his hips were strained, bruised and injured, causing him great pain,
There is hut this one count in the declaration.
At the October term, 1881, of the said court, the defendant filed a plea of not guilty, upon which plea issue was taken, and at the May term, 1883, of said court, the cause was tried by a jury upon the evidence and instructions given by the court, and a verdict rendered in favor of the plaintiff for the sum of §5,250 ; and, thereupon, the defendant moved the court to set aside the said verdict and grant it a new trial, because the same was contrary to the evidence and the instructions of the court, and because the same was not sustained by the evidence, and because the damages assessed by the said verdict were excessive; which motion the court overruled, and entered up judgment for the plaintiff upon the verdict aforesaid.
The evidence, as stated in the hill of exceptions, is certified by the court in the form of a certificate of evidence rather than as a certificate of facts; and upon the established rule, this court in determining the question whether the circuit court erred in overruling the motion to set aside the verdict of the jury, and to grant a new trial, must reject all the evidence introduced by the plaintiff in error (the exceptor in the court below), which is in conflict with that of the .adverse party, and give full faith and credit to the testimony introduced by the adverse party, though it is within the province of this court to determine whether the certificate should he treated as one of facts or evidence. Read’s Case, 22 Gratt. 929.
The defendant in error was severely injured; but there was no accident to the train, or any occurrence whatever, other than the usual and inevitable incidents to the running and management of the freight trains around the curves and down the grades of the road. The evidence shows no negligence or want of skill on the part of the employees of the road. It is not charged, nor does the evidence show that there is any defect in the structure or condition of the road, or in its machinery and equipment. The defendant in error, George B.“Ferguson, was his own witness, and he testified that when he entered the caboose at Bristol, he seated himself in a chair, which he knew to be the conductor’s chair, near an open side door of the caboose. That there were fixed seats in the caboose, placed there for the use of passengers, running lengthwise on both sides the caboose, by occupying any one of which he would not have been in danger of. falling, or being thrown from the caboose; that those benches or fixed seats on the sides of the caboose would, each, have seated six persons; that they are safe; and, that if he had taken a seat on one of them, he would not have fallen out. He testified that he drank some beer before he left Bristol, and that when the train reached Abingdon he got off the train and went to a saloon and drank some whiskey; that it was the 1st day of August; and that the chair in which he was sitting was against a box, which was within two or three inches of the open side door of the caboose, near which he was sitting from the time he left Bristol till he fell out, except once when he walked across the caboose, when it passed Montgomery’s switch, and looked
John W. Barr, a witness who was introduced on behalf of the plaintiff, Ferguson, testified that the plaintiff was brought to his hotel at Abingdon, and remained there eight days; that he told him about the accident, and that his understanding from what the plaintiff told him was, that plaintiff was leaning back in a chair, against the doorpost, with his legs crossed; and that plaintiff did not blame the railroad company so much for the accident, as he did because he was. left to lie so long upon the side of the road.
Here is the defendant in error admitting, and stating in evidence on the trial, that, upon an August day, near noon, he, already heated with hot and intoxicating liquors (and mixed drinks of beer and whiskey at that), entered the caboose where there were regularly provided and safe seats for passengers, and voluntarily seated himself in a light, loose chair upon the imminent verge of the open side door of the caboose, leaning back against the side of the open door, with his legs crossed, upon a train which, he says, was running at the speed of thirty-five miles .an hour, around short curves, and on a down grade. Could even a perfectly cool, sober, thoughtful and careful person, in such a position as that in which the defendant in error,
The defendant in error testifies that when the train got to Hagy’s cut, it was going around a short curve and down grade, and a reverse of some kind caused him to be thrown out of the open door. That he did not know whether the engine was reversed or not, but that the cars ran together so hard as to cause him to be thrown out; that he caught the side of the door with his hand and prevented himself from falling upon his head—that the chair fell'out with him.
“ It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual fault of both parties. When it can be shown that it would not have happened, except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained.” Railroad Company v. Jones, 95 U. S. R. 439 (opinion of Justice Swayne). This question of contributory negligence by the party injured has been often the subject of judicial investigation in the courts of other states, and in the case recently decided in this court of Dun v. Seaboard & Roanoke Railroad Company, 78 Va. (3 Hansbrough) 645, Judge Lacy, in delivering the opinion of the court, said : “ It seems to be the better rule, both upon authority and upon reason, that the passenger being endowed with intelligence which enables him to foresee and to avoid danger, the exercise of at least ordinary prudence is required on his part to escape it; and if, by his failure to exercise these faculties for his own preservation, a misfortune befall him, though the carrier may have been in fault, it will be attributed to his own carelessness and inattention, and the responsibility will not be thrown on the carrier.”
“A carrier is not liable for injuries resulting from an accident against which the highest degree of skill, foresight and diligence would have been unavailing. The presumption of negligence, however, does not attach itself to every injury which may overtake a passenger while being transported in á car; it belongs only to that class of accidents where the injury is caused by a defect in the road, cars or machinery, or by want of diligence or. care in those employed, or by some other thing which the company can and ought to control as a part of its duty to carry the passenger safely, because in all these matters it is the duty of the company to use the highest degree of care to have all their arrangements safe and in good condition.” 20 Amer. Railway Decisions, 245-7 and 261; Meier v. Penn. Railroad Company, 64 Penn. St. 225; Curtis v. Rochester & Syracuse R. R. Co. 18 New York, 534; American Law Review, January number, 1871.
“ In order to maintain an action against a railroad company for injuries received, &c., it must be proved that the injury was caused by the negligence of the defendant or his agents, and "it must not appear from the evidence, that want of ordinary care and prudence on the part of the person injured, directly contributed to the injury. Negligence cannot be imputed to the company from the fact that the train may be behind the usual time.” 17 Am. Railway Rep. 253, and cases cited.
“ What is such contributory negligence as will defeat a recovery
Applying these authorities to the evidence out of the mouth of the defendant in error, himself, we think it clear, and conclusively certain, that, but for his concurring and co-operating' fault, the injury which he brought upon himself would not have happened to him. And we are, therefore, of opinion, that the verdict is plainly against l;he evidence, and that it should have been set aside, and a new trial awarded, upon the motion of the plaintiff in error.
There were sundry instructions asked for by the defendant in the court below, but which were refused; and the court gave instructions of its own, in lieu thereof. But, as we have disposed of the case upon its merits, we do not deem it necessary to analyze or pass further upon the several assignments of error in the said Instructions.
We are of opinion that the verdict is wrong and contrary to the evidence, and that there is error in the judgment of the circuit court of Washington county, as aforesaid; and that the verdict must be set aside, and the judgment of the court thereon be reversed and annulled, and a new trial awarded.
The judgment was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the argument of counsel, is of
Judgment reversed.