90 Va. 836 | Va. | 1894
delivered the opinion of the court.
The suit was instituted by the defendant in error against the railroad company to recover damages for the negligent killing of W. E. Marshall, a passenger, on the night of July 1, 1889.
But it is claimed by the defendant in error that the consequences of this act of God could have been prevented by the. use of ordinary diligence on the part of the defendant company, and this can only be determined from the evidence in the case which shows that the accident occurred on a dark and rainy night, the rain pouring at times in torrents and flooding the track, which was laid along the side of the Blue Ridge mountains, causing stoppages from time to time at exposed places.
Before the train reached the place of the accident the rain ceased, and the train had reached a portion of the track which had always been regarded as perfectly safe. The character of the watershed was such that the water ran rapidly off along the mountain side, and the train proceeded on its way without further obstruction. The train at last reached the place of the accident, which was a dirt fill, provided with a stone culvert
The contention of the defendant in error is, that the speed of the train was recklessly rapid and it hurled the mail car clear across on the opposite side, but the fact is the whole train did not go on the embankment, some of the cars stopped when the accident occurred and were wholly uninjured, and there is nothing whatever in the evidence which is adduced by the defendant in error only which shows any negligence on the part of the company. The circuit court erred in overruling the demurrer to the evidence of the defendant company, which should have been sustained, and this judgment must be reversed and annulled for the reasons stated, and this court will render here such judgment as the said circuit court ought to have rendered.
Judgment reversed.