115 Va. 362 | Va. | 1913
delivered the opinion of the court.
This action was brought by J. E. Webb to recover of J. C. Nesbit damages for injuries alleged to have been occasioned by the negligence of the defendant. The trial resulted in a verdict and judgment in favor of the plaintiff, which we are asked by the defendant to review.
The petition assigns two grounds of error: (1) That the court erred in giving and refusing instructions: and (2) That it erred in overruling the motion for a new trial.
Viewed from the standpoint of a demurrer to the evidence, the pertinent facts appear to be that the defendant, a building contractor, was engaged in constructing a round house for the Norfolk and Western Railway Company in its West Roanoke yards. The round house was to be constructed on the site of an old one, consisting of twenty-one stalls, which was to be taken down in sections of six stalls at a time, so that the railway company could continue its use until the new round house was ready. The new house was to be much larger than the old one, the
In addition to a general denial, the defendant interposed the defense of contributory negligence on the part of the plaintiff, contending that the plaintiff had no right to be at the place where the accident happened; that he was a trespasser, or at most a bare licensee, and the defendant owed him no duty, except not to wantonly and wilfully injure him.
The defendant complains of the action of the court in refusing instructions “A” and “B” offered by him.
Instruction “A” tells the jury, “that if they believe from the evidence that the Norfolk and Western Railway Company had turned over to the defendant the possession of said premises for the purpose of tearing down the round house located thereon and rebuilding the same, and that the plaintiff was not required to go on said premises for any purpose in the performance of his duties as an engineer of the Norfolk and Western Railway Company, and that the plaintiff went thereon at the time he was injured for his own convenience, then the plaintiff had no legal right on said premises, and the defendant owed him no duty to keep said premises in a safe condition; and in going upon said premises, the plaintiff assumed all risks of danger arising from the condition of the premises by reason of work done thereon by defendant in the performance of his contract with the Norfolk and Western Railway Company to tear down and rebuild the round house located thereon.”
Instruction “B” tells the jury, “that if they believe from the evidence that the plaintiff had no legal right on said premises, then the only duty that the defendant owed to him was not wilfully to injure him while on said premises.”
This is an abstract proposition that could have been of no help to the jury in determining the question at issue. Apart from these considerations, the jury was by other instructions abundantly and. liberallly instructed upon every phase of the defendant’s theory of the case and he could not possibly have suffered any prejudice from the court’s action in refusing to give these two instructions. It is clear from the authorities that the plaintiff was not a trespasser or mere licensee, but was using the premises by implied invitation.
The rule that is applied to a railroad in this State is that it has the right to a clear track, and is not liable for injury to persons received upon its track; but if the company knows, or by the exercise of ordinary care should know, that persons are in the habit of, and have been for some time, using its track as a foot path, so that it has no right to expect a clear track, then it is the duty of the company to exercise reasonable care to prevent injury to persons so on the track at such place. C. & O. Ry. C. v. Cordin, 110 Va. 700, 67 S. E. 179.
The rule applicable to railroads is applied generally. Orme v. City of Richmond, 79 Va. 86; N. & W. Ry. Co. v. De Board’s Admr., 91 Va. 700, 22 S. E. 514; Henry v. Disdrow Mining Co., 144 Mo. App. 350, 128 S. W. 841; De Farr v. Ford Heim Brewing Company, 62 Kan. 188, 61 Pac. 689.
In Henry v. Disbrow Mining Co., supra, the rule is thus stated: “If a person knows that people are using property as a right of way, and have been using same for such length of time that the presence of persons upon the same is to be expected, then it is his duty in making excavations across such pathway, or putting obstructions thereon, to exercise reasonable care and not negligently injure persons so in the habit of using such pathway.”
The objection to instructions No. 1, given for the plaintiff, is not Avell taken. In the light of the foregoing authorities that instruction clearly' and accurately states the law ■ applicable to the plaintiff’s theory of the case and has abundant evidence for its support.
The petition for a Avrit of error contends that the condition of the premises, resulting from beginning the work of dismantling the stalls, Avas at the time of the accident sufficient to Avarn the plaintiff of the danger of using the route he did, and that in using such route he assumed the risk of injury and cannot charge the result to the defendant. The defendant had only worked on the premises for three days prior to the accident, and there is a conflict in the evidence as to Avhat had been done prior thereto, and the aspect the premises presented at the time of the accident. The evidence, hoAvever, is overwhelming that there Avas no obstruction Avhatever to the passAvay over which the plaintiff traveled betAveen the exit from the stall and the point Avhere he fell into the ditch. This question, involving the contention that the plaintiff Avas guilty of contributory negligence, Avas submitted to the jury under instructions which stated the law as fully as could be desired, and their verdict is conclusive on the point.
Without further detail it is sufficient to say in conclu
The judgment complain’ed of must be affirmed.
Affirmed.