104 Va. 806 | Va. | 1906
delivered the opinion of the court.
The first assignment of error is to the action of the court in not sustaining the defendant railway company’s demurrer to each of the five counts of the plaintiff’s declaration. The court sustained the demurrer to the first and fourth counts, but overruled it as to the others.
This action w.as instituted by the plaintiff to recover damages for injuries, caused by the alleged negligence of the railway company, received at a public crossing near Burkeville. The second count of the declaration avers that on the day of the injury the plaintiff was driving in a one-horse buggy along
The objection made to the declaration is that the averments of fact in the count do not show that the hand-car was an object so unusual or extraordinary as to have a natural tendency to frighten horses of ordinary gentleness and training.
Injury alone will not support an action of this kind; there must be a concurrence of wrong and injury. If a person does an act which is not unlawful in itself, he cannot be made liable in damages for resulting injury, unless he does the act at a time, or in a manner, or under circumstances, which will render him chargeable with a want of proper regard for the rights of others.
Mr. Elliot, in his work on Roads and Streets, sec. 616, (2nd Ed.) says, in discussing the liability of a municipality for injuries resulting to travelers from horses becoming freigbt-ened at objects on or near the highway, says, that “where a horse of ordinary gentleness becomes freightened at objects naturally calculated to frighten horses, which the corporation has negligently placed, or permitted to be placed, and remain, in .the
Judge Thompson, in his commentaries on the Law of Negligence, vol. 1, sec. 1257, says: “A person who negligently or unlawfully places or leaves on the highway an object which from its appearance is likely to frighten a horse of ordinary training 'and docility, is liable- to a traveler for any damage which is the proximate result of the horse taking fright at such object.” See also sections 1258 and 12-59, 1 Shear. & Red. on Neg., 355.
In Piollet v. Simmers, 106 Pa. St., 51 Am. Rep. 496, where numerous cases are cited and the question quite fully discussed, the horse of a traveler took fright at a small barrel mounted on wheels, which the owners of the property, through which tire highway ran were using in whitewashing their fences, and which they moved from time to time as the work progressed. They left it standing covered over with a white cloth, and having a shovel projecting a short distance above the top, all day Sunday on one side of the beaten highway track. In an action for damages thus caused, it was held, that unless there was something of an unusual or extraordinary character in the structure and appearance of the apparatus, which would naturally tend to frighten horses of ordinary gentleness and training, it was not negligence to use it; and its reasonable use for no longer a time than was naturally required on the. highway in whitewashing the fence of defendants would not subject them to liability, although some horses might and did take fright at seeing it.
If the rule stated in the authorities cited be correct as to objects on the highway, and wo think it is, certainly no higher degree of care, if as high, should be required of a person placing or leaving near the highway, on his own premises, appliances in use thereon. The count under consideration does not show
The third count is substantially the same as the second, except that it makes the additional averment that the servants and agents of the defendant negligently hung wearing apparel and bright tin buckets on the arms of the hand-car, and that these objects caused the horse to take fright.
If that count had averred, in addition, that the hand-ca.r with these objects upon it, was so unusual or extraordinary in appearance as to have a natural tendency to frighten horses of ordinary gentleness and training, it would, we think, have stated a good cause of action.
The negligence relied on in the fifth count is based on the failure of the defendant to keep its right of way at the crossing “sufficiently smooth and level to admit of safe and speedy travel over such crossing,” as required by.sec. 1096, Oode of 1887, (cl. 39, sec. 1294d, Va. Oode, 1904). The count avers that the public road on which the plaintiff was traveling was located prior to the building of the railway, and that it was the duty of the defendant company to keep the said crossing, to tho full width of its right of way, sufficiently smooth and level to admit of safe and speedy travel; that on the day of the accident the defendant had not exercised ordinary care and prudence in complying with this duty, but on the contrary, through
Under the averments of this count, it was the duty of the defendant to keep its right of way at the crossing in the condition required by the statute, and if its failure to do so was the proximate cause of the plaintiff’s injuries, then the defendant would be liable in damages therefor. But the count fails to show the nature of the gullies and obstructions which it avers were in the highway, or how they prevented the plaintiff from controlling her horse, or such a state of facts as show that the condition of the highway was the proximate cause of the plaintiff’s injuries.
We are of opinion, therefore, that the Circuit Court erred in not sustaining the defendant’s demurrer to the second, third, and fifth counts of the declaration, and that for this error its judgment must be reversed and the cause remanded, with leave to the plaintiff to amend her declaration, and for further proceedings not in conflict with the views expressed in this opinion.
Errors are assigned to the action of the court in giving and refusing certain instructions. As precisely the same questions involved in these instructions are not likely to arise upon the next trial, upon new and different pleadings, it is unnecessary to consider those assignments of error further than to say,
Reversed.