92 Va. 549 | Va. | 1896
delivered the opinion of the court.
The question involved in this case is the liability of the-Norfolk and Western Railroad Company for the alleged negligent killing of the plaintiff’s intestate, who was a trespasser upon the premises of the defendant company.
The court, in a very recent opinion, has prescribed what seems to us a wise and just rule for our guidance in cases like this. It is there said that the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was proximately caused by omissions 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. Seaboard and Roanoke R. R. Co. v. Joyner's Adm'r, ante, p. 354. So far as pertinent to the question now under consideration, the facts proven can be briefly stated.
The engineer and supervisor were called as witnesses on behalf of the plaintiff. The engineer testified that his train was running forty or forty-five miles an hour, its usual rate of speed; that he was looking out all the time, and that when about 150 yards distant he discovered what he took to be an old cross-tie lying in the ditch, or an old coat; that he had
The supervisor testified that he first saw the object at a distance of 500 yards, though about the distance he was not certain ; that it looked to him like an old cross-tie that had been pulled out and was lying in the ditch.
Fireman Kelly, introduced by the defendant, was also looking out, and first saw the object 150 or 200 yards ahead, and took it to be a section-hand’s coat.
This object was seen by these three witnesses, and seems to have made about the same impression upon each of them. It does not appear to have been regarded as of sufficient importance to be commented on, for neither mentioned it to the other. No one of them took deceased to be a human being. They all took the object they saw to be something lifeless— ■something that could not be hurt. These are the material facts disclosed by the evidence. The court is of opinion that there was not sufficient notice or belief of the danger to which deceased was exposed to put a prudent man on the ■alert, and to cause the engineer, under the circumstances of this case, to do more than he did to avert the accident. The ■engineer is the plaintiff’s witness. He states positively that he first saw the object at a distance of 150 yards; that he took it to be a tie, or a coat, lying in the ditch at the side of the track; that he had no idea it was a human being, and that he discovered it to be a man as soon as he could have ■done so, but it was too late to do anything to save the deceased. This is corroborated by the evidence of the super
There was then no notice or belief that deceased was in danger, and there was nothing to canse a prudent man to think there was danger ahead. On the contrary, the track was clear. The fact that the engineer saw what he supposed to be an inanimate object, lying in the ditch at the side of the track, was not sufficient to impose upon him the duty of taking steps to stop his train. No such degree of caution is required under the rule to which we have adverted. Bail-road companies would fall far short of meeting the demands of the public if they had to stop whenever they saw an object lying on the side Of the road-bed, for fear it might be a trespasser in danger. When they have sufficient notice, or sufficient ground to believe that a trespasser is in danger, they ■owe him the duty of protection, as far as possible consistent with their higher duty to passengers. But when no one is known or believed to be in danger, they are under no obligation to prepare for what is not anticipated, or to stop and examine where no harm is suggested by the circumstances.
It would be wholly unprofitable to prolong this opinion by considering other exceptions of the plaintiff in error to the rulings of the court below; for, whether the court erred or not in the rulings complained of, it cannot change the result. The line of evidence sought to be brought out by the questions objected to, if admitted, could not alter the effect of the uncontradicted facts proven by the plaintiff’s witnesses.
We are therefore of opinion that the Circuit Court did not ■err in sustaining the demurrer to the plaintiff’s evidence, and its judgment in favor of the defendant is affirmed.
Affirmed.