111 Va. 716 | Va. | 1911
delivered the opinion of the court.
This action was brought to recover damages for the death of Leroy Overton, an infant thirteen years or more of age, which it is alleged was caused through the negligence of the defendant railway company.
It appears that the place where the fatal accident which is the basis of this suit occurred was a point on the defendant’s right of way located in Norfolk county, outside of Norfolk city in the direction of Suffolk, being the point where the defendant’s tracks are crossed by the tracks of the Virginian, formerly known as the Tidewater Railroad. At this point the defendant’s tracks run approximately north and south, and the Virginian Railroad crosses in a direction approximately northeast and southwest. At this crossing the Virginian has one track and the defendant three tracks, the latter being the regular double tracks of the main line at "that point for trains inbound and outbound to and from Norfolk city, together with a siding to the east of the main line.
The plaintiff’s intestate was a white boy, about five feet in height, who had resided in Berkley ward of Norfolk city, and had employment in a silk mill in the vicinity of the place of the accident. Near the intersection of the two railroads, west of the defendant’s tracks and north of the Virginian’s single track, there stands a signal tower, maintained by the Virginian for the purpose of operating the trains of the two roads over this crossing in safety. On the momning of the accident, the “Cannon Ball” train-was running on the regular outbound track from Norfolk towards Suffolk, i. e., in a southerly direction, going at the speed of about twenty-five miles an hour, slower than the usual speed of that train, but the speed provided in the regulations for passing this crossing and the interlocking system adjacent thereto, and struck decedent at a point south of the tower. At the time of the accident a freight train of the defendant was passing the point of the accident on the other or inbound track for Norfolk, to the left of the tower and track on which the “Cannon Ball” train was running, viewed from the direction that the last-named train was approaching, and the freight train had just about half passed the point of the accident, so that its middle was opposite the said point. The engineman on the “Cannon Ball” train, who was at his station on the right of his cab keeping a lookout as he approached the crossing, had signals from the tower which showed that the crossing was open for his train, and that he could proceed without stopping. When his engine was approaching the crossing, but some distance away, the engineman saw three boys approaching the crossing along a path leading to the tracks at right angles, on the right side of the tower, which path runs along /gineman to see people, men, women and children, approaching^ ■Va line of trees, and it was a very common thing for the en--'
Before the building of the Virginian Railway there had been in use for a number of years a neighborhood road extending in a southeasterly and northwesterly direction across the defendant’s tracks at the point of this accident, but when
The trial resulted in a verdict and judgment for $2,500 in favor of the plaintiff, which we are asked to review and reverse.
Defendant insists here on its exception taken at the trial to the giving of the seventh and eighth instructions asked by the plaintiff, the exception to the seventh instruction being upon the ground that there was no evidence in the case upon which to base it.
The instruction is as follows: “The court instructs the jury that even though they may believe from the evidence that the plaintiff’s intestate, when seen by the defendant’s servant, was not then in a position of danger, still if they further believe from the evidence that the said servant of the defendant suspected, or, in the exercise of ordinary foresight, would have suspected from the surrounding circumstances that the plaintiff’s intestate was unaware of the approaching train, and was in close proximity to the track upon which said train was running and would likely get into a dangerous position on or near said tracks, and be injured by said approaching train, then it was the duty of the said defendant to exercise ordinary care to prevent injury to the plaintiff’s intestate.”
We are of opinion that the evidence was not sufficient to justify the giving of this instruction, as we shall see later in this opinion.
Plaintiff’s eighth instruction is as follows: “The court in
The objection to this instruction is directed at the following language contained therein: * * * * it was then the duty of the defendant company to use reasonable care to discover Leroy Overton if on or about to cross the railroad track on which the train was proceeding and in danger at that place, and that if the said defendant did not use such care, and that by its failure so to do the accident occurred, then they must find for the plaintiff’s intestate, * * *
The two theories intended to be presented by this instruction, and which the evidence tended to sustain, were, first, that the engineer’s statement to the effect that the cab of his engine had reached the tower house when the deceased stepped upon the interlocking swatch system was inaccurate; therefore, if this act on deceased’s part took place when the engine was some distance north of the tower, as testified to by plain
We are of opinion that the plaintiff had the right to submit the two theories set forth in the instruction to the jury, especially as the defendant had presented its theory of the case in the seven instructions it asked, and which were given. See the case of Adamson's Admr. v. Norfolk & Portsmouth Trac. Co., ante p. 556, 69 S. E. 1055, just decided by this court.
The refusal of the circuit court to give defendant’s instruction No. 3, and the giving in lieu thereof the court’s own instruction marked No. 3-a, is assigned as error.
The instruction refused is as follows-: “It was the duty of the plaintiff to look and listen before attempting to cross the defendant’s tracks at any point or points from which he might, by the exercise of ordinary care, have seen or heard the approaching train. And if you believe from the evidence that he might, by so doing, have ascertained the approach of the train in time to avoid the accident, it must be conclusively presumed that he disregarded the rule of law and common prudence and did not look and listen, or if he looked and listened that he went negligently into an obvious danger, if you
The court’s instruction No. 3-a is: “If the jury believe from all the evidence that the deceased was a boy capable of knowing the danger of crossing a railroad track upon which trains were frequently passing, then it was his duty to look and listen before attempting to cross the defendant’s tracks at any point or points from which he might have seen or heard the approaching trains, and if he failed to use or exercise that intelligence which his age, experience and capacity indicated by failing to look and listen, then you shall find for the defendant.”
We think that instruction No. 3, as asked, was defective, in that it confined the test of an infant’s capacity for negligence to his intelligence only, while the rule of law that the capacity of an infant between the age of seven and fourteen years for contributory negligence is dependent not only upon his general intelligence, but also upon his experience and maturity, is well settled; therefore the circuit, coiirt rightly changed the instruction so that the capacity of the deceased was to be determined not alone by his intelligence but also by his experience and capacity, and this was not unfavorable but favorable to the defendant.
The remaining assignment of error is to the refusal of the trial court to set aside the verdict and award the defendant a new trial, on the ground that the verdict is contrary to the law and the evidence. ■
The first question presented under this assignment is: Was the evidence sufficient tó warrant the jury’s finding that the defendant’s servants were guilty of negligence, and that their negligence was the proximate and sole cause of the death of plaintiff’s intestate?
In considering this question we may say in the outset and without reference to the evidence in detail, that it is conclusively shown that the deceased, who was certainly not under
The question, therefore, upon which the case turns is: What was the negligence of the defendant’s servants that alone caused the death of plaintiff’s intestate ? In other words, when did the engineman have reason to believe that the deceased was going into a dangerous position, or when should he have discovered the intention of the deceased to disregard his own duty to look and listen for the train and to walk upon the tracks in front of the rapidly approaching train; and, if after the engineman saw, or ought to have seen, the deceased’s dangerous situation, did he or did he not use all. reasonable means at his command to prevent injury to the deceased?
According to plaintiff’s own witnesses, the deceased was paying no attention to the approach of any other train to the crossing, but with his eyes fixed on the moving freight train in front of him he walked, at the speed of from three to four miles an hour, over the interlocking switch system, in the path passing near to the tower, and upon the track in front of
In Humphreys v. Valley R. Co., 100 Va. 749, 42 S. E. 882, the contention was made that if the engineman on the train had sounded the alarm whistle when he discovered Humphreys to be in danger, it would have caused him to get off the track, but it was held that, under the circumstances of the case, even if the expert witnesses had said that the sounding of the whistle would have caused him to get off the track, it would have been nothing more than conjecture. So. Ry. Co. v. Bruce, 97 Va. 92, 133 S. E. 548.
In N. & W. Ry. Co. v. Cromer, 99 Va. 763, 40 S. E. 58, it was held that the trial court erred in refusing an instruction which told the jury “that the burden of proof is on the plaintiff to prove negligence, and that the proof must amount to more than a probability of a negligent act; that lie verdict cannot be founded upon conjecture.”
In an action to recover damages for an injury inflicted through the alleged negligence of the defendant, the burden is on the plaintiff to prove the negligence alleged, and the evidence must show more than a mere probability of negligence. It is not sufficient that the evidence is consistent equally with the existence or non-existence of negligence. There must be affirmative and preponderating proof of the defendant’s negligence. N. & W. Ry. Co. v. Cromer, supra.
The decisions of this court as to the duties and obligations resting upon those operating a railway train towards persons observed to be near or upon the track in front of an approaching train, lay down as a guiding principle of law, that an honest discretion is permitted the trainmen in the exercise of
In the case at bar, the engineman, as we have seen, stated that when the deceased stepped, up on the switch rods, his suspicion was aroused, but this was not sufficient to take away from the engineman. the right to indulge the presumption that he (deceased) would keep out of the way of the on-rushing train, and the right to that presumption continued until there was reason to believe that the deceased was not going to keep out of the way of the train, and then all was done that it was possible to do to avoid injury to him. “I was looking for him to stop,” says the engineman. It is shown that from the farthest side of the switch rods to the nearest rail of the track on which the train was approaching was eleven feet, and as the path that, the deceased was travelling ran diagonally from the switch rods to the track, the deceased had to travel twelve feet to get on the track, while the train, travel-ling at twenty-five miles an hour, had, according to plaintiff’s evidence, to travel only fifty feet or a little more before reaching the deceased.
In N. & W. Ry. Co. v. Dean, 107 Va. 505, 59 S. E. 389, the injured party was upon the railway track, and there, as here, a recovery of damages was sought on the ground that the engineman had not taken proper precaution to avoid injury to Dean, but the recovery was denied, and the opinion by Keith, P., in discussing the rule governing in such a case, held: “If his presence is observed by careful and experienced men operating the train, and they, in the exercise of their
The opinion in that case also uses the following language : “If the emergency brake had been applied at the instant Whit-worth (conductor) discovered the presence of Dean upon the track, the accident would have been averted; but, in the honest exercise of his descretion, in the light of his long experience, he did not at that moment consider Dean in a position of peril. He appears to have been an intelligent official; and there is no reason to suppose that his conduct was not controlled by an honest purpose to do his duty, or that he did not give the signal to steady and then to stop to the engineer as soon as the danger of Dean’s position became apparent to him.” See also N. & W. Ry., Co. v. Solenberger, 110 Va. 606, 66 S. E. 726, 857.
It is made clearly to appear in this case that Cousins, the engineman running the engine which struck the deceased, was an intelligent and capable official of long experience in the employ of the defendant company, and in this connection we refer again to the fact that when he first saw the deceased after the latter emerged from behind the tower he (deceased) was at least twelve feet out of danger, and there is no evidence even tending to prove that after he got in a perilous situation by stepping upon the track it was possible for the engineman to prevent his being struck by the engine, for plaintiff’s witnesses say that he was struck at the instant he got upon the track, and before the alarm whistle had ended.
In Humphreys v. Valley R. Co., supra, it is shown that a situation may appear different to those operating the train, and to those in different positions; and in Southern Ry. Co. v. Daves, 108 Va. 378, 61 S. E. 748, in which an infant eight years of age who had been seen by the engineer approaching the track, got upon the railway track in front of
In C. & O. Ry. Co. v. Hall's Admr., 109 Va. 296, 63 S. E. 1007, after stating that the doctrine of the last clear chance had no application to the facts of the case, the opinion by Harrison, J., says: “The fireman first saw the deceased when she was about to turn upon the little bridge in the direction of the crossing, but he did not know that she •was going to attempt to cross, and he had a right to presume that she was not going fco drive on the track in front of a -rapidly moving train in plain view. So. Ry. Co. v. Daves, 108 Va. 378, 61 S. E. 748. When he realized that she was going to attempt to cross, there was nothing that he could do to save her. He did not even have time to call to the engijieer.”
We are of opinion that the verdict of the jury in this case, finding the defendant guilty of negligence resulting in the death of plaintiff’s intestate, is without sufficient evidence to •support it. Therefore, the judgment of the circuit court upon the verdict must be reversed, the verdict set aside, and the •cause remanded for a new trial.
Beversed.