86 Va. 390 | Va. | 1889
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of Botetourt county, in an action of trespass on the case, wherein the administrator of Robert Lucado, deceased, was plaintiff, and Sidney F. Tyler, receiver of the Shenandoah Valley railroad company, was defendant. The action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate, on the night of the 29th of October, 1885, whilst in the employ of the defendant as a track hand, temporarily detailed as an extra watchman. His death was caused by the derailment of a locomotive on which he was riding, and that was occasioned by a wash-out iu the road-bed, which caused the engine to roll down into the edge of the river, near the track, when the deceased, unfortunately, was drowned.
At the trial there was a verdict for the plaintiff for $8,000 damages, which the defendant moved the court to set aside, but the motion was overruled, and judgment entered on the verdict, whereupon the case on a writ of error was brought to this court.
The contention of the defendant in error, the plaintiff below, is that the deceased was rightfully on the fengine, and that his
The facts disclosed by tlie record, so far as it is necessary to state them, are substantially these: The deceased, on the night of the accident, was detailed to watch the track for a certain distance, and to give warning of any signs of danger that he might discover. There had been a severe, in fact an almost unprecedented rain, just before, from which danger to the track was apprehended, and in consequence of which extraordinary precautions seem to have been taken by the officials of the company.to prevent accidents.
At a point, a shoi’t distance below, or north, of the place where the accident occurred, there was a crack in the railroad embankment, which another employee was ordered to watch with a red light. A red light is a well understood signal of danger, and to enginemen it means to “stop.” From this "point, about seven o’clock in the evening, the deceased, with a lantern in his hand, started up the track to go over his beat, - which extended up the track about three-quarters of a mile from that point. The night was very dark.
How often the deceased passed over his beat, if. more than once, does not appear. His orders, however, were peremptory to be vigilant, and to “ walk backwards and forwards over the track” between the points indicated. There was evidence for the plaintiff tending to show that his beat extended up the track a greater distance than three-quarters of a mile. .But be that as it may, it is certain that he had the opportunity to pass over it several times, at least, before the accident occurred. The watchman with the red light above mentioned testifies that he saw nothing of the deceased from the time he started out, at seven o’clock, until after the accident, which occurred a lit-tie after ten o’clock that night. The deceased, a few minutes before that time, was at a point on the track, less than a mile
lie then, without any order or invitation, express or implied, from any one, got on the engine, which thereupon proceeded down the track in the direction of the red light. It moved slowly and cautiously at. a rate not exceeding three or four miles an hour, so slowly, according to the evidence, that the deceased could easily have gone on foot in front of it; and both Driscoll and Egan testify that a man would have been sent in front from that point, but for the assurance of the deceased that the track was safe. The train, however, had not gone far when a sudden cry of alarm was uttered by Driscoll, who was looking out, and all on the engine, except the engineman and the deceased, jumped off, just in time to save themselves. The engineman and the deceased were carried down with the engine into a chasm in the road bed, and thence into the river, along the margin of which the road was built. The deceased was caught fast in the wreck, and in a little while the rapidly rising water submerged and drowned him.
Eule 107 of the “Train Eules” of the company provides that no person shall be permitted to ride “on au engine without an order from the superintendent or superintendent of motive power, except the engineman, fireman, road foreman of en
The evidence also shows, and it is conceded, that had he not gotten on the engine, he would not have been injured.
Can this action, then, be maintained? We think not. It would be strange indeed, if it could be. The deceased in getting on the engine not only disobeyed his positive instructions to walk upon the track, but violated the general rules of the company also; and but for his deceptive report that the track was safe, it is a moral certainty, if we can believe the uncontradicted evidence in the case, that the accident would not have happened.
The case is a much stronger one than Roach v. Va. Midland R. R. Co., 83 Va., 375, in which ease it was held that the plaintiff, who was injured while riding on a locomotive, was not entitled to recover; and authority to the same effect is abundant.
That the deceased was himself the author of his misfortune, is too plain to admit of doubt. And it makes no difference that his riding on the engine was not objected to by those in charge of the train, for they were as much bound by the rules of the company as he was. So that when he got on the engine
Judgment reversed.