115 Va. 385 | Va. | 1913
delivered the opinion of the court.
The following is a summary of the salient facts concerning the killing of William Steele, to recover damages for whose death this action was brought.
The defendant, the Colonial Coal and Coke Company, prevailed in the circuit court upon a demurrer to the evidence, and that judgment is now before us for review.
The defendant is a private corporation and operates a railroad as an adjunct to its business, extending from its coal mines and coking plant at Dorchester to Dorchester Junction, three miles away, where a connection is formed with the Louisville and Nashville Bailroad and the Interstate Bailroad. The defendant is not a common carrier, but uses this branch line of railway under the statute which allows a coal company to operate a railroad from its mines to a junction point with a common carrier. The Sutherland Coal and Coke Company (which will hereinafter be called the Sutherland Company) is a private firm of coal operators, and owns a line of railroad from their plant on Powell’s river, a distance of several miles, to a point of junction with the defendant’s road at Dorchester, from which latter point to Dorchester Junction they run their cars over the defendant’s road. Besides its main track from Dorchester to Dorchester Junction, the defendant has several switches or yard tracks used in connection therewith in the immediate vicinity of its coke ovens. The Sutherland Company owned a “dinkey” engine of about eighteen tons weight, and the defendant’s engine weighed sixty-five tons. There Avas also a traffic arrangement between the tAvo coal companies by Avhich the Sutherland Company Avas permitted to operate its “din-key” over the defendant’s yard tracks.
It is undenied that the engineer in charge of the dinkey was apprised of the purpose of the crew of the big engine to couple it onto the cinder car and push it off on the cinder track, and that this was done in the usual way and with ordinary care. The speed of the big engine did not exceed one mile an hour, and the force of the impact was not excessive, “the bump was very light,” less, it was said, than is usually incident to coupling cars under like conditions. Nor does it appear that those in charge of the big engine knew of the presence of Steele on the dinkey.
In these circumstances, without considering any other phase of the case, it is manifest that the evidence fails to fix actionable negligence upon the defendant. The general doctrine is fundamental, that in an action to recover damages for personal injuries, negligence will not be presumed, but the burden rests upon the plaintiff to prove it affirmatively and by a preponderance of the evidence. This rule is nowhere more strongly stated, or more steadfastly adhered to than in the decisions of this court. N. & W. Ry. Co. v. Cromer, 101 Va. 667, 44 S. E. 898; Consumer’s Brewing Co. v. Doyle, 102 Va. 399, 46 S. E. 390; Northington v. Norfolk R., &c., Co., 102 Va. 446, 46 S. E. 475; N. & W. Ry. Co. v. McDonald, 106 Va. 207, 55 S. E. 554; Baugher v. Harman, 110 Va. 316, 66 S. E. 86.
No cause of action can arise when an injury results from doing a dangerous but lawful act in a lawful manner. To hold otherwise would be to outlaw numerous occupations which are essential to the welfare of mankind. In all such cases the doctrine of “Assumption of Risk” applies. When, therefore, one takes passage on a freight train, he assumes
Complaint is made of the failure of the defendant to have promulgated rules for the movement of engines on its yard. Ho such duty was owing from the defendant to a mere licensee upon its premises, but if it were the evidence does not show any proximate causal connection between the alleged omission and the injury complained of, as was done in the case of an employee in Va. Iron Coal and Coke Co. v. Lore, 104 Va. 217, 51 S. E. 371.
The judgment is plainly right and must be affirmed.
Affirmed.