92 Va. 354 | Va. | 1895
delivered the opinion of the court.
This is an action of trespass on the case, brought in the Circuit Court of the county of Southampton by Joyner’s administrator against -the Seaboard and Roanoke Railroad-
Only the demurrer to the third count is here insisted upon. From this count it appears that Sinclair Joyner, starting at Branchville'station, walked down the track of the defendant company about 300 yards, stopped, and sat down on the track; that the local freight train of the defendant was then at Branchville station, plainly within sight of Joyner ; and that the defendant company negligently ran its engine upon Joyner’s body, being then and there constantly, from the time the engine moved from Branchville station up to the time of the accident, clearly and plainly within seeing distance of the employees of the company who were in charge of the engine, thereby giving Joyner fatal and mortal wounds, of which he died, his death being caused by the wrongful act of the defendant company.
In Baltimore and, Ohio R. R. v. Sherman’s Adm’r, 30 Grat. 602, the first count in the declaration charged that the defendant company, operating a certain railroad for the purpose of running steam locomotive engines and coaches on and over the same, did carelessly and negligently, and with great force and violence, run and drive its.engine upon and against Nathan G. Sherman, there then being, and thereby, then and there, with said engine and coaches, did so greatly wound said Nathan G. Sherman that, by reason thereof, he then and there died, and his death was caused by the said wrongful act, neglect, and default of said railroad company, wherefore damages were claimed. Upon a demurrer, the count was held good, Judge Moneure delivering the opinion, in which the whole court concurred.
The next question to be considered arises upon the exception to the action of the trial court in giving instructions numbered 5 and 6, which are in the following words :
“Eo. 5. The court instructs the jury that if they believe from the evidence that Sinclair Joyner went upon the track of the defendant company without its consent, and placed himself thereon in such a position as to be struck by the train, then the said Joyner was a trespasser, and guilty of such contributory negligence as will prevent a recovery by his administrator in this action, unless the jury further believe that after his peril was discovered the injury could have been prevented.”
“ No. 6. The court instructs the jury that though the plaintiff may have been guilty of contributory negligence, and although that negligence may in fact have contributed to the accident, yet, if the jury believe from the evidence that the
We do not think that the correctness of Instruction No. 6, as given by the court, can be successfully controverted. It enunciates a proposition which has been repeatedly approved by this court, that though the plaintiff may have been guilty of contributory negligence, and although that negligence may in fact have contributed to the accident, yet, if the jury' believe that the defendant could in the result—that is, after it discovered his peril—by the exercise of proper care and due diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse it; and this, I take it, without regard to the fact that the contributory negligence of the plaintiff may have had its origin in a.trespass upon the property of the defendant company. While the extent of the duty of the defendant company to look out for trespassers, and the degree of care to be exercised in ascertaining the peril of a trespasser, are the subjects of much controversy, it is well established that, when the danger to the trespasser is discovered, it -is the duty of the defendant company to avoid doing him an injury, if that can be done consistently with the higher duty which it owes to the passengers and property directly committed to its care; and this I take to be the meaning of “ due care and diligence,” as used in the sixth instruction. What is proper care and due diligence is to be determined by reference to surrounding circumstances. What would be reasonable and prudent conduct in a given situation would, under changed conditions, be sufficient to warrant the imputation of negligence. It is unnecessary, however, to expatiate upon the subject, or to cite authorities in support of it, other than the case of R. D. R. R. Co. v. Anderson’s
Instruction No. 5 is substantially the same as No. 6, reference to which has just been made, except that the latter prescribes the duty which rested upon the defendant company, after the discovery of the plaintiff’s peril, to be the exercise of “ proper care and due diligence ” to avoid the mischief; while No. 5 makes the railroad company responsible if the jury believe that, after the peril of plaintiff’s intestate was discovered, the injury “ could have been prevented.”
It is contended that the terms used here would require the defendant company to exercise the highest degree of diligence with respect to a confessed trespasser, whereas the law only imposes upon it the duty of ordinary care. I do not think, in the first place, that this would be a fair interpretation of the language used. There is no reason why we should construe this instruction as meaning that the defendant should be liable unless the injury could have been prevented by the higher degree of care, if that degree of care was not imposed by the law upon the defendant under the facts and circumstances surrounding the parties at the time the accident occurred. Thompson on Charging Juries, sec. 131; Benn v. Hatcher, 81 Va. 25, 31. The reasonable construction would seem to be that the jury were to understand from it that the defendant’s liability would attach, unless it used, after the discovery of the plaintiff’s peril, that degree of care and diligence, in avoiding, the mischief, which the law required, regard being had to the surrounding circumstances; and not a higher degree of care than the law imposed; that is to say, the “ proper cave and due diligence ” to avoid the mischief which happened, which is expressed in terms in the instruction immediately succeeding. But suppose that the broader
Hor is there any error in the refusal of the court to grant the instruction asked for by the plaintiff in error, and set out in Bill of Exceptions Ho. 3, which is in the following words :
££ The court instructs the jury that if they believe from the evidence that Sinclair Joyner went upon the track of the defendant company without its consent, and placed himself thereon in such a position as to be struck by a train, then the said Joyner was a trespasser, and guilty of such contributory negligence as will prevent a recovery by his administrator in this action, unless the jury further believe that the accident was caused by the willful negligence of the company.”
In what we have said with respect to the law of this case, we do not wish .to be understood as questioning the correctness of the decisions in Railroad Co. v. Sherman, 30 Gratt. 602; Railroad Co. v. Morris, 31 Gratt. 200 ; Railroad Co. v. Anderson, 31 Gratt. 812; Railroad Co. v. Harman’s Adm’r, 83 Va. 553 ; Tyler v. Site's Adm’r, 88 Va. 470, and same case reported in 90th Va. 539.
It is no longer an open question in Virginia that, except at crossings and places where the public have by law or custom, or by the acquiescence of the company, a right to the use of railroad property, the railroad company has the exclusive right to the uninterrupted enjoyment of its road-bed, track,
The law upon this subject is, we think, properly stated in the 99th section of Shearman & Bedfield on the Law of Negligence (4th ed.), where it is said that “the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he com-, plains was proximately caused by the omission of the defendant, after having such notice of the plaintiff’s danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if he has sufficient notice or belief to put a prudent man on the alert, and he does not take such precautions as a prudent man would take under similar notice or belief.” See Donahoe v. Railway Co., 83 Mo. 543 ; Bishop on Non-Contract Law, 1037 ; Beach on Con. Neg., p. 21.
The facts of this case present to our minds but little difficulty, under'the rule by which we are governed in their consideration where a motion is made to set aside a verdict as contrary to the evidence.
The statement of this witness is of itself sufficient to sustain the verdict, under the rule just adverted to, but it receives strong confirmation from the testimony of other witnesses, some of whom testified on behalf of the plaintiff in error. The engineer admits that he saw the signals made by Mason ; that h.e saw an object near the track, which he mistook for an abandoned tie ; that he thought the signals had reference to some source of danger behind the people who were making them, and not between him and them. He seems, therefore, to have disregarded the warning first observed, and violated the rule of the company, which prescribes that “ a flag or
The engineer says that he first saw Joyner, or rather that he first discovered what it was on the track, when within about sixty yards of him, and that then he blew brakes, reversed the engine, and gave a “little sand.” According to his own account, therefore, he was within sixty yards of Joyner before he took any measures to stop the train, while, according to Mason’s account, the witness ran at least eighty yards upon the track, waving his hat, before the train struck Joyner. There can be little doubt that a train, such as that is proved to have been, could have been brought to a stop while an old negro man was running eighty yards. If, as he said, he did not reverse his engine and whistle down brakes until within sixty yards of Joyner, he is certainly mistaken in saying that he whistled down brakes and reversed his engine as soon as he saw the signals by the-witness. The only escape from this conclusion is to be found in the suggestion that he did not see Mason, and that, under the circumstances disclosed in this case, would of itself constitute very great negligence. He admits, however, that he did see him, but, instead of acting in obedience to the rule prescribed by his employer, he chose to doubt, to hesitate, and to consider as to what he should do, until he came within sixty yards of the unfortunate man, and then it was too late to repair the consequences of his negligence, and to avoid the accident.
When the engineer concluded that the time for action had come, he confessedly did all that was in his power to avert the accident. He ordered the brakes to be put down, he reversed his engine, and he opened the sand-box. The effect of these energetic measures was to cause the wheels to drag upon the track. Nothing more could have been done in the performance or discharge of any degree of diligence or duty.
We think the judgment of the Circuit Court is without error, and should be affirmed.
Affirmed.