105 Va. 538 | Va. | 1906
delivered the opinion of the court.
This action of trespass on the case was brought by the defendant in error to recover damages for the death of her intestate, which is attributed to the negligence of the plaintiff in errur.
There was a verdict and judgment for the plaintiff in the trial court, and the defendant brings error.
The first assignment of error questions the action of the court in overruling the demurrer to the declaration. The declaration contains two counts, and the demurrer is to the entire declaration and to each count thereof, and is accompanied by a statement in writing of the grounds of demurrer relied on. Ya. Code, 1904, sec. 3271.
The first count wholly fails to set forth the circumstances attending the death of plaintiff’s intestate in such manner as to show that the relations existing between the parties were of a character to impose a duty upon the defendant, the negligent
The recent case of Virginia and North Carolina Wheel Co. v. Harris, 103 Va. 708, 49 S. E. 991, citing a number of Virginia decisions in point, illustrates the rule that “a demurrer to a declaration as a whole raises the question whether the declaration sets out sufficient matter to sustain the action; and if there are several counts in the declaration and any of them is good, the demurrer should be overruled.”
But it is also a well settled rule of pleading and practice that where there are two or more counts in a declaration, or a single count containing several breaches, some well and others ill assigned; or containing a demand of several matters, divisible in their nature, some of which are well and others ill claimed, and there is a demurrer to the whole declaration and to each count thereof, or to the several breaches assigned, the demurrer must be sustained to the faulty counts or breaches, and overruled as to such counts or parts of the declaration as are not amenable to objection. 1 Chit. Pl. (14th Am. ed.), 664; 1 Rob. Pr. (old), pp. 281-2; 2 Tuck. Com. (3d ed.), p. 261; 4 Min. Inst., Pt. 2 (3d ed.), p. 1107; 1 Bar. L. Pr. (2d ed.), p. 456-7.
In accordance with these authorities the order of the court •overruling the demurrer to the first count of the declaration constitutes error for which the judgment -would have to be reversed, even though the second count set out a good cause of action.
We are of opinion, however, that the second count is likewise bad. It alleges that the defendant’s side-track extends over a trestle or bridge spanning a creek in the city of Bristol, which affords the only available means to pedestrians of crossing the
This count, it will be observed, does not allege that the decedent was seen on the trestle by the defendant’s employees in charge of the train, nor is it distinctly averred that by the exercise of ordinary care on their part alone he might have been seen and his peril discovered in time to have avoided the injury; for the allegation is predicated upon the presence of a lookout on the end of the cars, in addition to the regular crew. In other words, the gravamen of the second count is that the de
The doctrine is settled by repeated decisions of this court that a railroad company does not owe the duty of prevision to a bare licensee upon its track; nor does it owe him the duty of employing competent servants to manage its trains, or to run them in a particular manner or at a particular rate of speed. “The general rule being that a bare licensee ... is only relieved from the responsibility of being a trespasser, and takes upon himself all the ordinary risks attached to the place and the business carried on there.” 2 Shear. & Red. on Neg., sec. 705; Nichols’ Admr. v. R. Co., 83 Va. 102, 5 S. E. 171, 5 Am. St. Rep. 257, and cases cited; Gillis v. Penn. R. Co., 59 Pa. St., 129, 98 Am. Dec. 317; Hollans, &c., v. Sparks, 92 Ga. 753, 18 S. E. 990. This being so, it would seem that the declaration •does not state a good cause of action against the defendant company (Hounsell v. Smyth, 7 C. B. (N. S.) 729; Matthew v. Bursel, 51 N. J. L. 30, 16 Atl. 195) since it does not aver that it intentionally or wilfully injured him; or that after it saw or knew of his danger, or by the exercise of ordinary care could have avoided injuring him, it failed to do so. Norfolk & Western Ry. Co. v. Wood, supra.
In yet more recent cases it has been held that a railroad company does not owe a licensee the duty of blowing its whistle, ringing its bell, running its engine at any particular rate of •speed, or having a light on its engine. C. & O. Ry. Co. v. Rogers’ Admx., 100 Va. 324, 41 S. E. 732; Williamson v. Southern Ry. Co., 104 Va. 146, 51 S. E. 195, 70 L. R. A. 1007.
It is clear, therefore, from the authorities, that the defendant was not guilty of actionable negligence in pushing the train in question over its trestle, and was under no obligation
We are of opinion that a count in a declaration thus blending allegations of duty, only one of which imposes any obligation upon the defendant, and attributes the accident to the cumulative effect of all as the proximate cause, does not conform to the reasonable rule of pleading applicable to this class of cases, which requires that the duty alleged to be owing from the defendant and the acts of negligence relied on shall be stated with sufficient particularity and clearness to enable the defendant to understand the nature of the charge that he is called upon to answer.
“In an action of tort, founded on the negligence of the defendant, the declaration must allege what duty was owing by the defendant to the plaintiff, the failure to discharge which caused the injury complained of, and its breach, or make such averments of facts as will show the existence of the duty and its breach. These averments must be made directly and positively and not merely by way of recital.” Hortenstine v. Va-Car. Ry. Co., supra; Southern Ry. Co. v. Hansbrough, ante, p. 527, 54 S. E. 17, decided at the present term.
Eor these reasons the trial court ought to have sustained the demurrer to the declaration and to each count thereof.
There are several other assignments of error, but as the questions involved are not likely to arise at the next trial of the case, it is unnecessary to discuss them.
Reversed.'