119 Va. 670 | Va. | 1916
delivered the opinion of the court.
This action was brought by J. W. Parrish to recover of the Norfolk and Western Railway Company damages for an injury alleged to have been negligently inflicted by the defendant while the plaintiff was upon its premises at Christiansburg. The trial resulted in a verdict and judgment for $2,000 in favor of the plaintiff, to which this writ of error was awarded.
Viewed from the standpoint of a demurrer to the evidence, the salient facts are, that the plaintiff, who, at. the time of the accident was twenty years of age, was upon the defendant’s premises, in pursuance of a previous engagement to meet a man, who was coming from West Virginia on defendant’s train No. 30, with the purpose of proceeding with him on the same train to Roanoke, and thence to North Carolina where they had a business deal in view. The plaintiff was waiting for the train in a hotel situated about twenty-five feet from the railroad track. Extending from the hotel porch to the north rail of the west-bound track, a distance of 24.2 feet, is a wooden walkway, about four feet wide, which is entirely on the defendant’s premises, and has been there for a number of years as the recognized, customary passageway provided for the use of persons going from the hotel and stores on the north side to the station on the south side, which use was well known to the defendant company and fully recognized and acquiesced in by it. When train No. 30 came in from the west, the plaintiff started at
The tank on this pusher engine was a large one, holding 9,000 gallons, and as high as the engineer’s position on the engine. No warning was given of the approach of the engine, and no light of any kind was visible on the forward end. The plaintiff was in a position to have seen a light on the tank if there had been one, his view being wholly unobstructed; and also in a position to have heard a bell if one had been rung, or a whistle if it had been blown. The pusher engine, after having struck the plaintiff, passed on without stopping, and without either the engineer or the- fireman knowing he had been hurt until the next day, when they were called upon to make a report. Just before they reached the crossing a curtain covering the whole forward end of the engine, and obstructing their view, was dropped by the fireman to protect himself and the engineer from the weather while the engine was backing.
It is clear that under the facts and circumstances of this case the relation of the plaintiff to the defendant company was that of an invitee upon its premises and
In the Cogswell Case, supra, the plaintiff had gone to the railroad station at night to meet a friend, in pursuance of an arrangement between them, to see him about a pending business deal. The night was dark and as he stepped upon the station platform his foot passed through a hole and he fell and injured his leg. The court held that the defendant owed him the duty of ordinary care, saying: “One who goes with the permission and acquiescence of the owner upon the premises of another, solely for his own pleasure and benefit, goes as a licensee. But one who goes upon the premises of another in a common interest or to a mutual advantage is there under the implied invitation of the owner. . It now seems to be the doctrine of the various courts of the Union that one who goes to the premises of a railroad company to meet an incoming passenger, or tó accompany a departing passenger, is within this rule and goes upon the premises of the railroad company under an implied invitation of the company.”
The defendant insists that the presence of the plaintiff’s hat and cigarette box at a point about seventy-two feet west of the board walk shows that the plaintiff was not struck while crossing at the intersection of the wooden walkway with the west-bound track, but at a point some seventy-two feet therefrom, where he was a trespasser and not an invitee. We are of opinion that it by no means follows as a necessary conclusion
Objection is taken by the defendant' company to the action of the court in the matter of giving and refusing instructions. Special attention is directed to the action of the court in giving for the plaintiff his instruction No. 4 and in refusing instruction No. 6 asked for by the defendant.
As to instruction No. 4 given for the plaintiff, it is contended that it assumes that the plaintiff was going oyer the- customary way from the hotel to the station; that he was walking around train No. 30 which lay across the passageway.; that the instruction ignores the fact that the crossing was blocked at the time; and that it puts the plaintiff in the category of an invitee. These objections to the instruction under consideration are not substantial. The testimony of the pla is that he was going over the regular passageway when he was struck. This evidence is not assumed in the instruction, but is left to the determination of the jury. It is true that the instruction is based upon the theory that the plaintiff was an invitee, and as already 'seen, f the jury believed his testimony he was an invitee.
We are of opinion that instruction No. 6, asked for by the company, was properly refused. It assumes that the place at which the plaintiff crossed the track was not a public crossing, whereas the uncontradicted evidence is that it was a public crossing, used as such for years by pedestrians going from the hotel, stores and other buildings on the north side of the tracks to the station on the south side. An instruction must not assume facts which are for the jury to find, and should
It would serve no good purpose to consider in detail other instructions included in the general objection taken by the defendant to the action of the court with respect to all of the instructions. It must suffice to say that the action of the court in the matter of giving and refusing instructions has been carefully considered, and that no error has been found in such action prejudicial to the rights of the defendant company.
The case has been fairly submitted to the jury upon evidence sufficient to sustain their verdict, and their conclusion in such a case should not be disturbed unless plainly against the weight of evidence.
The judgment complained of must be affirmed.
Affirmed.