| Va. | Feb 10, 1904
delivered the opinion of the court.
This action was brought by Samuel Hawkes, a minor, suing by his mother, as next friend, to recover from the Norfolk & Western Railway Company damages for injuries alleged to have been received in consequence of the negligence of the defendant company.
It appears that there is at Blackstone, Ya., a station of the defendant company, which has in front of it a platform 95 feet long and 12 feet wide. This platform has a straight edge on the side next to the railroad' track, while the track has a slight curve that would not be observed unless attention was called to it. The result of this curve is to bring a train, when it reaches the station, closer to the platform at some points than others; the projection of the cars over the platform varying from 1J inches at the ends, to 10 inches at the nearest point of contact between the rail and the platform.
On the 18th day of May, 1902, about 11:55 P. M., the plaintiff, a youth 19 years of age, who was an employee of the railroad company, went upon the platform, in the discharge of his duty, to take the mail bag off the express car; and, as the train pulled in, he was struck by it and thrown down, with one leg under the wheels of the engine, resulting in injuries that made amputation of the leg necessary.
It is averred that it was negligence in the defendant company to employ a youth 19 years of age, without the consent of his mother, his father being dead, and without requiring him to file a written application setting forth his age, experience, and other necessary qualifications; that it was also negligence in the defendant not to furnish the plaintiff with a copy of its rules, and not to give the plaintiff particular instructions touching the dangers and perils of his employment. The averment of negligence, however, chiefly relied on, is that, in careless disregard of the ordinary rules of safety, the defendant company erected its
The jury found a verdict for the plaintiff, and assessed his damages at $1,500. Á motion for a new tidal on the ground that the verdict was contrary to the law and the evidence, and for other reasons, was overruled, and judgment was given for the plaintiff, to which ruling the defendant excepted.
In the view taken by this court, it is unnecessary to consider any other assignment of error than that which involves the refusal of the lower court to set aside the verdict as contrary to the law and the evidence; and, in dealing with that subject, it is wholly unnecessary to enter upon a consideration of the question whether or not any actionable negligence has been traced to the defendant company, for, if such negligence were conceded, the plaintiff, upon well-settled principles, would not be entitled to recover; the injury of which he complains being the result of his own reckless and inexcusable negligence.
The evidence shows that the plaintiff was a person of intelligence, and that the only duty he had to perform on the night of the accident was, when the passenger train reached the station, to take from the messenger on the express car the United States mail bag. He had been in the service of the defendant for 18 days, and had performed this same duty on 34 former occasions. The platform was 12 feet wide at the point of the
In B. & O. R. Co. v. Whittington's Adm'r, 30 Graft. 805, an employee of the railroad company, who was engaged in mending the track, stood near enough to the track to be struck by a train if there should have been an increase of speed, or a wider car passing. He might have stood further off and been safe. This court declared him to be guilty of the greatest imprudence and negligence, and denied a recovery for his death. Judge Staples, delivering the opinion of the court, said: “But it is obvious to every mind that a man who stands near enough to a railroad track to be struck by a train, if perchance there should be an increase of speed, or a change of cars, is simply guilty of the greatest imprudence and negligence.
“No man is justified in placing himself near a passing train upon any such idea or presumption. It is inexcusable rashness and folly to do so. The instincts of self-preservation, the dictates of the most ordinary prudence, would suggest, and even
“In the present case the deceased both saw and heard the train long before it reached him. It is not denied he had ample time to get out of the way.”
In the case at bar it was not a question of having time to get out of the way. The plaintiff was in a place of safety, and put himself, unnecessarily and negligently, in the way. In the case of passengers upon the station platform of a railroad, it has been repeatedly held that they could not recover where they had been guilty of negligence in going near enough to the edge of the platform to be struck by a passing train. Chicago, B. & Q. R. R. v. Mahara, 47 Ill. App. 208" court="Ill. App. Ct." date_filed="1893-05-25" href="https://app.midpage.ai/document/chicago-burlington--quincy-railroad-v-mahara-6994059?utm_source=webapp" opinion_id="6994059">47 Ill. App. 208; Matthews v. Pennsylvania Ry. Co., 148 Pa. 491" court="Pa." date_filed="1892-04-18" href="https://app.midpage.ai/document/matthews-v-pennsylvania-r-r-6240738?utm_source=webapp" opinion_id="6240738">148 Pa. 491, 24 A. 67" court="Pa." date_filed="1892-04-18" href="https://app.midpage.ai/document/greenwaldt-v-kraus-6240745?utm_source=webapp" opinion_id="6240745">24 Atl. 67; Dotson v. Erie R. Co. (N. J. Err. & App.), 54 A. 827" court="N.J." date_filed="1903-03-02" href="https://app.midpage.ai/document/dotson-v-erie-railroad-8271493?utm_source=webapp" opinion_id="8271493">54 Atl. 827.
In the case last cited, a passenger was struck, while walking near the edge of a station platform, by the pilot beam of a passing engine, which projected over the platform. The court declared that there was no question of negligence by the company, and denied a recovery. In a well-considered opinion, the court said:
“It is undoubtedly a settled rule that a railroad company is under a duty to exercise ordinary and reasonable care to so construct and maintain station buildings, platforms, and approaches that they shall be safe for use by passengers. Elliott on Railroads, 1590. But this use is to be exercised in conformity to the manifest purpose for which the structure in question is adapted. And so a railroad company is only required to build platforms of sufficient dimensions to accommodate passengers
The negligence of the plaintiff was the proximate canse of his injury, and in such a case there can he no recovery.
Pot these reasons, we are of opinion that the lower court erred in overruling the motion of the defendant company to set the verdict aside, and its judgment must therefore he reversed, and the case remanded for a new trial.
Beversed.