83 Va. 851 | Va. | 1887
delivered the opinion of the court.
The declaration contains but one count, in which it alleged that on the twenty-first day of December, 1885, the defendant was possessed of certain engines and cars, used and employed in conveying passengers and freight along the line of its railway in Accomac county, State of Virginia, and that on said day, the plaintiff’s intestate, N. Judson Kellam, in pursuit of his lawful business, was driving along a public road of said county leading from Pungoteague to Fair Oaks, and attempted to cross the track of said company at a crossing known as the Camp-Meeting crossing, in the Pungoteague magisterial district of said county where said railroad track crosses said public road, and the said defendant did, on the date last aforesaid, on its track at the crossing aforesaid, so carelessly, negligently, and with great force and violence, run and drive its engine and coaches upon and against the said N. Judson Kellam
There was a demurrer to the declaration, which the circuit court overruled, and thereupon the defendant pleaded “ not guilty,” upon which plea issue was joined. At the trial, the jury rendered a verdict for the plaintiff and assessed the damages at §2,500. The defendant thereupon moved for a new trial, on the ground that the verdict .was contrary to the evidence, and because the court had misdirected the jury; but the motion was overruled, and the defendant excepted.
The defendant then moved the court to set aside the declaration, and all the proceedings under it, as inappropriate to the form of action instituted, which motion was overruled. A motion was. then made by the defendant for a repleader, on the ground that the issue joined was “ not in the action brought, and was immaterial to the action,” which motion was also overruled. A motion in arrest of judgment was also made and overruled; “and the defendant thereupon craved oyer of the writ, which was read to him, * * * * and again moved in arrest of judgment for errors apparent on the face of the record, which motion was refused.”
The writ commands the sheriff to summon the defendant company to answer the plaintiff of a plea of trespass on the case ; whereas the declaration purports to be in, and is in form appropriate to, an action of trespass.
The:court gave judgment according to the finding of the jury, whereupon the defendant obtained a writ of error and supersedeas.
I. The first assignment of error is that the circuit court refused to grant the defendant’s motion to set aside the
The action in both of these cases was trespass on the case, and in each case counts in trespass were united in the declaration with counts in case. This, the court said, would have been a fatal defect on demurrer at common law, but it was held to be unobjectionable under the provisions of the statute above quoted. And we perceive no distinction upon principle between those cases and the case at bar. For if one or any greater number of counts in trespass may, under the statute, be joined in the same declaration with counts in case, it is because, as the court said in the cases referred to, the material distinctions between the two forms of action as they existed at common law have been abolished, at least where the action is in case. In other words, the counts in trespass are, in such case, treated as statutory counts in case. And so here, the writ being in case, the declaration, which contains a single count, may with the same propriety be treated as a declaration in case, and the circuit court rightly so held.
II. We proceed, then, to consider the case on its merits. The rule is, that an action is not maintainable for injuries
In the decisions of this court (above referred to) the qualification of the rule was stated in the language of the opinion in the leading case of Tuff v. Warman, 5 C. B. (N. S.) 573, and is the established doctrine in this court. So that, in the light of the rule, and the qualification thereto, “if there was negligence on the part of the defendant, and also on the part of the deceased, and the negligence of the latter contributed to the injury, the right of recovery depends upon the circumstances.” If, however, the death of the deceased would not have occurred but for his own negligence, then, as we have seen, there can be no recovery. In the light of these principles, applied to the evidence certified in the bill of exceptions, it is clear that the motion for a new trial ought to have been granted.
As already shown, the charge in the declaration is that the defendant, on the twenty-first of December, 1885, did so carelessly operate one of its trains, in crossing a public highway, as to run with great force and violence upon and against the plaintiff’s intestate, whereby he was then and
The evidence for the plaintiff is conflicting as to whether the customary signal, by sounding the whistle of the locomotive, was given for the crossing, and if given, at what point it was given, though the witnesses agree that the whistle was sounded, giving what are called “ distress signals” before the deceased was struck. The evidence also shows that the deceased resided in the neighborhood; that he frequently passed over the crossing; and from the fact that on approaching the fatal spot he failed to look to ascertain whether the crossing could be safely made, the reasonable inference is that he failed to listen also.
These facts are clearly established by the plaintiff’s own evidence; and they show that the deceased was, unfortunately, not only culpably negligent in omitting to take
In treating of the law of contributory negligence, a learned author says: “ Where a party, in the exercise of his own right, is in the enjoyment of that which is common to others also, or which may in any way narrow, impede or restrict the enjoyment of rights by others, his duty to observe a vigilance proportionate to the danger of interference is manifest. Thus, one about to cross a railway track by the public highway, where the liability to collision is great, will be held precluded by his contributory negligence from a recovery for an injury, if he drives upon the track without looking for approaching trains.” And this is so, he adds, even though the railway company is required by statute to sound an alarm at such places, and has neglected to do so. Cooley on Torts, 679.
“ It is universally deemed culpable negligence for any one to cross the track of a railroad operated by steam power in full view or hearing of an approaching train, or
The adjudged cases in support of these views are almost without number. In the recent case of Dublin, Wicklow & Wexford Railway Co. v. Slattery, L. R. 3 App. Cas. 1155 (a case most elaborately considered in the House of Lords), the Lord Chancellor (Cairns) is reported as saying: “If a railway train, which ought to whistle when passing through a station, were to pass through without whistling, and a man were, in broad daylight, and without anything, either in the structure of the line or otherwise, to obstruct his view, to cross in front of the advancing train and to be killed, I should think the judge ought to tell the jury that it was the folly and recklessness of the man, and not the carelessness of the company, which caused his death.”
In Schofield v. Chicago & St. Paul Railway Co., 114 N. S. 615 (a case strikingly like the case in hand), the supreme court of the United States, quoting from its own opinion in Railroad Co. v. Houston, 95 U. S. 697, said: “ The failure of the engineer to sound the whistle or ring the bell, if such were the facts, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employees in these particulars, was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far
In Bellfontaine Railway Co. v. Hunter, 33 Ind. 335, the court said: “ In North Penn. R. R. Co. v. Hiliman, 49 Penn. St. 60, it was held to be the duty of the traveller approaching a railway crossing to look along the line of the railroad track and see if any train is coming; and if he fail to take such, precaution, it is more than evidence of negligence—it is negligence itself, and the court should so charge the jury. This, indeed, is the true rule; for when it is determined as a legal proposition that one may not rush blindly upon the rails over which trains are passing, propelled by an agent serving its master almost at its own will, the neglect of this duty to use the physical senses is negligence, and not mere evidence of negligence.” See also, Ernest v. Hudson River R. R. Co., 39 N. Y. 61; Fletcher v. Atlantic & Pacific R. R. Co., 64 Mo. 484; Brown v. Milwaukee & St. Paul Railway Co., 22 Minn. 165; Baxter v. Troy, &c., R. R. Co., 41 N. Y. 502; Allyn v. Boston & Albany R. R. Co., 105 Mass. 77; Ormsbee v. Boston & Providence R. R. Corp., 14 R. I. 102; Balt. & Ohio R. R. Co. v. Sherman’s Adm’x, 30 Gratt. 602; Nash v. Richmond, Fredericksburg & Potomac R. R. Co., 82 Va. 55.
III. The next question relates to the admissibility of certain evidence. At the trial several witnesses for tke defendant were each asked, upon cross-examination, whether or not they had made certain statements after being sworn as witnesses at the coroner’s inquest over the body of the deceased, to which they each answered in the negative. The plaintiff at the proper time offered- in rebuttal extracts from the depositions of these witnesses taken at the coro
IV. After the evidence on both sides had been introduced, the court, on the defendant’s motion, gave to the jury the following instructions, which correctly propound the law:
1st. “The court instructs the jury that the'train’s mere speed of motion is not per se evidence of negligence, nor is the fact that the train is behind time.”
2d. “The court also instructs the jury that no failure on the part of the railroad company to do its duty could excuse the deceased from failing to use his senses of sight and hearing on approaching the crossing in question.” See N. & W. R. R. Co. v. Ferguson, 79 Va. 241; R. R. Co. v. Houston, 95 U. S. 697.
Several other instructions were also asked for by the defendant, which were modified by the court, and, as modified, were given. And it is contended by the defendant, the plaintiff in error here, that the circuit court erred in refusing to give the instructions as asked for without
The judgment must be reversed, and the cause remanded for a new trial to be had therein in conformity with the views herein expressed.
Judgment reversed.