84 Va. 63 | Va. | 1887
delivered the opinion of the court.
The declaration alleges that the plaintiff was a truckman, and that on the 20th of June 1885, while he was driving his truck from the wharf of the Old Dominion Steamship company, in said city, the truck was struck with such force and violence by a train of the defendant company, which was being backed or pushed into the said wharf, as that the truck was demolished, and the plaintiff himself was seriously injured. The object of the action was to recover damages for these injuries, which, it is alleged, were caused by the negligence of the defendant.
The evidence shows that the defendant has a track running down "Water street, in said city, and that a short distance above
The evidence also shows that prior to the accident, the defendant company sometimes stationed a watchman at the gate to Avarn persons of the approach of trains when going into the wharf, such a precaution being regarded as necessary to avoid accidents, and it does not appear that a .watchman was there stationed when the accident*in question occurred. In point of fact, the evidence shows the contrary. It also shows that as the plaintiff started to drive from the wharf, his attention was attracted by some one calling to him from behind; that he turned his head in the direction from Avhich the voice came, and as he was driving through the gate, the train backing to pass in at the gate, suddenly came upon the plaintiff, colliding with his truck before it cleared the gate, aud injuring the plaintiff as above stated.
This statement of the eAÚdence is sufficient for a correct understanding of the questions which have been raised respeet
After the evidence had been introduced, the defendant moved the court to-instruct the jury as follows: “Although the jury may believe from the evidence that the defendant or its employees gave no signal of the approach of its cars, either by ringing bells or by calling out, or otherwise, yet, if the plaintiff’ could by looking around, or by watchfulness on his own part, in approaching the railroad track, have discovered the approach of the defendant’s cars, or if, after seeing the same, he could have avoided them by turning aside, backing, remaining standing, or otherwise, and did not, he was guilty of such contributory negligence as bars his recovery.”
This instruction the court refused to give, and in lieu thereof gave the following: “Although the jury may believe from the evidence that the defendant or its employees gave no signal of the approach of its cars, either by ringing bells or by calling out, or otherwise, yet, if the plaintiff knew the train was then-nearing the gateway»to pass through, or could by such observation or watchfulness in approaching the railroad track as a man of ordinary prudence under the circumstances would have used, have ascertained that the train was approaching to pass through in time to have avoided it by the use of such means as an ordinarily prudent man would have used under the circumstances, and did not so avoid it, he was guilty of such contributory negligence as bars his recovery.”
It needs no argument to show that in this action of the court there was no error. In the instruction which was refused, tío attempt was made to define the degree of care and caution which it was incumbent on the plaintiff to have exercised to entitle him to recover—an objection which does not apply to the instruction given. In the latter, the jury were correctly instructed that to entitle the plaintiff to recover, he must have exercised such care and caution as an ordinarily prudent man would have used under the same circumstances, whereas the
Moreover, the instruction which was given must he taken in connection with the following instructions which were also given, and which correctly propound the law:
“ 1st. The jury are instructed that it was the duty of the plaintiff', in approaching the railroad track of the defendant, to look and listen for approaching trains with such care as an ordinarily prudent man, under the same circumstances, would have used, and failure, if there was failure to do so, is such contributory negligence on his part as debars a recovery for an injury received by collision with the approaching train, unless the defendant, after seeing the plaintiff, or after it should, in the exercise of due care, have seen the plaintiff on its track, or so near thereto as not to leave space to pass clear, failed to exercise all proper means to avoid the accident.”
“ 2d. Although the jury may believe from the evidence that the defendant or its employees had no look-out properly stationed, yet, if the plaintiff could by looking about him with ordinary care, or by the ordinary use of his ordinary senses in approaching the railroad track, have discovered the approach of the defendant’s cars in time to have avoided them by the use of such means or conduct as a man of ordinary prudence under the same circumstances Avould have used, and did not so avoid them, he was guilty of such contributory negligence as bars his recovery.”
An exception Avas also taken to the refusal of the court to give the folloAAÚng instruction: “The jury are instructed that the degree of care required of a railroad company is that used by good specialists in the same business.”
This instruction was very properly refused. It embodies an altogether abstract proposition, and AAmuld have shed no light upon the case the jury were SAVorn to try. It would not have informed the jury either what it meant by “ a good specialist,” or what degree of care is required of such a person; so that
Complaint is also made of the action of the court in giving to the jury the following instruction at the instance of the plaintiff:
“If the jury believe from the evidence that the plaintiff was injured by the defendant’s train by the defendant’s negligence, and that the place of the accident is so situated that a view of an approaching train was so obstructed that a person driving out from the yard of the steamship company could not see an approaching train, then the fact that the plaintiff did not look or see the approaching train cannot be considered as contributory negligence.”
As regards this instruction it is proper to say that the question of negligence is a mixed question of law and fact; (Dun v. Seaboard and Roanoke R. R. Co., 78 Va., 645; Balt. and Ohio R. R. Co. v. McKenzie, 81 Va., 71), and the jury having been previously instructed as to the degree of care required of the defendant company, it was left to them to say whether the injuries of the plaintiff were caused by the defendant’s negligence, with the further remark in effect that if the evidence showed that the plaintiff was so situated that it was physically impossible for him to see the approaching train, then the fact that he did not look or see it was not contributory negligence on his part. We are of opinion that the instruction correctly propounds the law, and that the court did not err in giving it.
BTor did the court err in further instructing the jury as follows: “If the jury believe from the evidence, and from a view of the place where the accident is alleged to have taken place, that the view of an approaching train was obstructed by buildings or otherwise, and that ordinary care would have required other precautions, and that the defendant did not use such other precautions, then they must conclude that the defendant
Objection is made to this instruction, on the ground that it is indefinite, in leaving it to the jury to say what precautions the defendant should have taken. It is for the court, says the plaintiff in error, and not the jury, to say what precautions, in such a case, are necessary, and that the instruction violates this rule. It is a sufficient answer, however, to this objection to say that there is no such rule. On the contrary, as already stated, negligence is a mixed question of law and fact, and it was, therefore, properly submitted to the jury to say whether the defendant had performed or omitted any act or acts which in the exercise of ordinary care, it was its duty to perform. In other words, the jury were told that it was the duty of the defendant to exercise ordinary care, and that a failure on its part to do so, if there was such failure, was negligence. Sherm. & Redf. Heg., §11, and cases before cited.
Eor substantially the same reason, we are of opinion that there was no error in giving the foliowing instruction, namely: ■“If the jury believe from the evidence that the defendant’s train was being pushed by the engine, and that this mode of locomotion increased the risk of injury to the plaintiff and other persons and property, then the law imposed an obligation upon it to give timely and suitable notice and warning of what the defendant was doing, and if the defendant did not give such timely and suitable notice, it was guilty of negligence, and if the plaintiff acted with the care with which an ordinarily prudent man would act under the circumstances, they must find for the plaintiff such damages as are proper, not exceeding the amount claimed in the declaration.”
We see nothing objectionable in this instruction. It correctly states the law, and was properly given. Norfolk and Petersburg R. R. Co. v. Ormsby, 27 Gratt., 455; Railroad Co. v. Gladman, 15 Wall., 401; Balt. and Ohio R. R. Co. v. McKenzie, 81 Va., 71; Petersburg Railroad Co. v. Hite, 81 Va., 767. It is, also contended that the court below erred in overruling the-defendant’s motion for a new trial. The motion was based on the ground that the verdict was contrary to the law and the-evidence, and also because the damages awarded by the jury were excessive. The evidence, all of which was parol, is certified in the bill of exceptions, and not the facts proven, so that, according to the established rule in this court, we must look to-the evidence of the plaintiff only. And a careful examination of that evidence satisfies us that the injuries of the plaintiff,
Fauntleroy, J. dissented.
Judgment aeeirmed.