88 Va. 470 | Va. | 1891
delivered the opinion of the court.
The trial court certifies not the facts proved, but the evidence adduced at the trial. From an inspection of the evidence thus certified it is impossible to perceive why the court below did not abbreviate the matter by certifying the facts proved, as there certainly is no conflict of evidence as to any material question arising in the case. But, be this as it may, the material facts, as established by the plaintiff’s testimony alone, are these: Thomas H. Sites, the plaintiff’s intestate, who ivas a deaf-mute, was, on the 24th day of May, 1887, while walking on or very near the railroad track of the Shenandoah Valley Railroad Company, about tivo miles north of Elkton, a station on said road, struck and killed by an engine attached to and drawing a train of freight cars on said road, which engine, and train was then in the control and management of the employees, agents and servants of said company. From Elkton the Shenandoah Valley Railroad extends northward, for nearly three miles, “ through a level cleared plain, comprising the rich, cultivated river-bottoms lying along the east side of the Shenandoah river in that locality. In the midst of this plain, and about two miles north of Elkton, the accident occurred, at a point where the track is elevated upon a slight fill, estimated at three feet, with nothing to obstruct the view of the track for a distance of nearly one mile to the north and an equal distance to the south.” About 600 yards north-of the point where the accident occurred a public road crosses the railway, and a short distance beyond, on the left or west side of the railroad, and some seventy-five yards distant therefrom, is the residence of Mr. Thomas Raylor, at or near whose residence the plaintiff’s intestate started to go to the house of Decatur Bear, and seems to have walked along near, but not on, the railroad track for some distance, and then on the track, or on the ends of the ties at the side of the track, and was so walking when he met the train by the engine of which he was struck and killed.
Thomas Naylor, above referred to, was introduced as a witness for the plaintiff, and testified “ that, he lives in Rockingham, six or seven hundred yards from Bear Lithia Springs; that the most, direct foot-route from his house to the springs is the railway, up to the crossing; that people are in the habit of using this route, and that witness himself used it; that witness knew the plaintiff’s intestate, and that he was at the house of witness on the morning of the accident; that he (Sites) said he was going to Decatur Bear’s, which is further south; that the direct route to Decatur Bear’s is by the railroad; that he come on the railroad about seventy-five yards from witness’ house, about two miles from Elkton; that it was about 500 yards from the house of witness to where he could see the road straight; that he (plaintiff’s intestate) could not be seen all the way from Elkton — trees would be in the way at the curve; that witness was at home that day, and knew of the accident; that he had heard the whistle for down-brakes; heard the train-man say to the section boss that they had struck a man. They went back, running; when witness got there he saw Bites; he was then dead; he remained there some time; and that witness heard no whistle before the one for down-brakes.”
Such is the testimony in chief of Thomas Naylor, and it signifies but little. However, his evidence on cross-examination is more to the point. He says : “ He had heard the whistle of the train at Elkton ; that Bites said, ‘ I believe I will go up to Decatur Bear’s ’; that witness told him not t.o go until after the train came down; that Sites said, ‘he would'not walk on the railroad ’; that- witness wrote on a little tablet that Sites carried with him that the train was in Elkton; that Sites kept next to the fence until he came to the crossing; that he went
George W. Murray, another witness introduced by the plaintiff, testified that he is a plasterer, and was, on the day of the accident, working on Bear’s Hotel, in East Rockingham ; that he was working on the north end of the hotel, about 500 yards from the Shenandoah Valley Railroad, two miles from Elkton; that Whitlock, witness’ son, and a colored man were with him; that colored man is now dead ; that witness saw the accident ; that at the time they were working on the hotel overlooking railroad; that witness’ son was looking through a field-glass. We came up to the window. We sawr a man walking pretty fast on the track, with his head down. He was on the far.side from us — on the outside of the rail; while looking we saw a train approaching; had heard no warning or signal; was surprised to see it;-were not expecting it. They came right together; . it knocked him oft'; ran fifty yards; blew down-brakes and stopped. The train had knocked Sites down the bank; the men came back and looked at him; a material train from Elkton came down and picked him up, and carried him to Elkton; was familiar with foot-path. A man going from Haylor’s would have taken that route. People were in the habit of taking this course. Have not noticed particular, but have seen several people passing from that route. Was well acquainted with Sites. ‘ He was deaf and mute. On one occasion he called my attention to the fact that he could hear a little. I do not remember his ever liav
On cross-examination this witness testified that it was up grade, going north from the point of the accident; that accident occurred 200 yards south of crossing, and five or six hundred yards from Bear’s house; that witness paid no attention to the distance; that the train was an ordinary freight train composed of eighteen or nineteen cars; that for a portion of the way from Elkton it was down grade; that Sites was working at Bear’s as a farm hand, but witness did not know what wages he got, but t supposed that he could earn fifteen or twenty dollars per month. That witness had had no experience with deaf-mutes; thought Sites had heard knocking in the building, that he had, on one occasion called witness’ attention, by putting his hands to his ears, that he heard the sound of the hammer. And the witness further said, “ he ” (Sites) “ was a mute, and you know how much a deaf-mute can hear. ■ Sites made the impression upon my mind that he heard better than Decatur Bear. Bear could hear train whistle at Elkton; and Sites could hear better.” On re-direct examination this witness (Murray) stated that “ there was no obstruction in the way of seeing the train, looking south to Elkton, for a mile or more; that the train was nearly 100 yards from Sites when witness and those with him first saw ■ it; that the train was moving slowly, was creeping up on him, and that there was no trouble about getting out of the way, if he saw it.”
A. J. Whitlock, another witness introduced by the plaintiff,
On cross-examination this witness testifies that Sites was several hundred yards ahead of'the train when witness first saw him; that witness cannot tell whether he was on the track or not; he was on opposite side from witness, and witness could not tell whether he was on the track or on the side; that his hand went up j ust as the train got there ; that witness was not certain whether the train struck him or not. And on reexamination, this witness says that he heard no whistle or noise before the man was struck; that he heard the noise of the train when it came opposite Bear’s house, and that the train whistled several times after it ran past and stopped. On re-cross-examination, the same witness testifies that Sites could not hear any one talk to him ; that witness had seeu him point up when it thundered; that he could not communicate except by writing, and that if one could walk up behind him and halloo he could hear.
Abraham Billhimer testifies that he knew Sites all his life, lived near him until 1870, and then moved off four miles; that Sites was a deaf-mute, and could not hear anything except something loud and terrific like thunder, which seemed to scare him very much; that witness was with him a good deal; that after witness moved to the mountains Sites came' to
The plaintiff also introduced Mrs. Mary Sites, who testified • that she lives near Keazeltown; that Tom Sites was her son; that she does not know where her husband is; that he is an olcl man, seventy-three, years old, and did not contribute to her support in 1887; that Tom was all her support in 1887, and that he was in his thirty-second or thirty-third year when he was killed; that he was a good hand, quiet and industrious, but was high tempered when provoked. On cross-examination, Mrs. Sites testified that her son, Tom, was away from home a great deal; that he was hurt by a train at Linville on the Baltimore and Ohio Railroad; that he knew it was train time, but the train was late at the time he was hurt at Linville ; that witness had often cautioned him about going on the railroad ; that she had so cautioned him in the last twelve months before he was killed; that she could not estimate what lie. had furnished her, but that he would bring her flour, sugar and coffee, moat, &c., just when she needed it, and that he had no family.
The plaintiff also introduced the tables of life expectancy in ' Matthews’ Guide. And V. H. Laue, the plaintiff in the cause, was introduced on his own behalf, and testified that Tom Sites’ father was an old man, and was in the almshouse. This is all the testimony on behalf of the plaintiff!
The defendant then introduced C. W. S. Turner, who testified that he knew Tom Sites very well; that witness used the sign language; was born of deaf-mute parents, and had taught at the Deaf, Dumb and Blind Institution in Staunton; had
On cross-examination this witness stated that Sites was a total deaf-mute; that he feels sounds, but does not hear them; he feels the noise of a plank when it falls, but does not hear it. And on re-examination this witness stated, in substance, that the difficulty with deaf-mutes is to locate the sound or concussion felt by them. That Sites’ mathematics were limited; that he could probably keep his accounts of his daily work; that witness had known his father, who is a deaf-mute, when there was cannonading at Richmond, to recognize the fact by putting his hands against the window; that it was sensation without the power of location; that he was totally deaf notwithstanding these sensations. And witness, as an expert, states that when a man reproduces sound he hears, and not
C.C. Diehl, another witness introduced by the defendant, testified that he was conductor on the traimin question ; that he was in his cabin at the time of the accident, but knew nothing of the accident until he was told by one of his brakesmen that a man had been struck; that witness’ position on a train is first one place and then another; that witness got off as soon as he could and found a man lying down the bank head foremost; that the body was left in charge of brakeman Sandridge, as his train had to go on; that he did not know how many cars were in his train, but thought there were from fifteen to twenty loads; that the grade was a descending grade, and that between seven to nine hundred yards would be required to stop a train at that point running twenty miles an hour, if he was running on schedule time — sometimes more, sometimes less. Did not remember any signal for down-brakes. Ran 200 or -300 yards beyond dead body, owing to rising grade. Stopped in that distance. That Mr. Crauch was engine-man; that he is a strong, sober, cautious engine-driver and man; that deceased was killed 200 yards north of curves, which is sharp; that train could be seen a half mile from where Sites was killed, looking south; was killed between two curves, one north, the other south. "We could have seen him; nothing to obstruct the view except some trees, and we could have seen through or by them.
William Mills, another witness introduced by the defendant, testified that he was working on the road-bed of the Shenandoah Yalley Railroad, north of the place of the accident, about 2,300 feet, at the time of the accident; first heard the train blow down-brakes; by the time it came near witness it stopped. Sandridge said a man was struck; witness ran back with train-hands to where he was, and the train followed; he was lying with his head down the bank; the ballast train came down and took him to Elkton; the track-hands were working opposite
The defendant also introduced T. B. Oranch, the engine-man in charge of the engine in question, who testified that he saw a man walking in front of the train and coming towards the engine on the leftside of the track. The engine was a Baldwin engine, with an extension boiler, and on this engine, for twenty-five or thirty yards ahead, the engine-man cannot see a man on the loft side of the track. Witness did not see the man when he was struck; when witness last saw him he was walking right towards the train on the left side of the track, and did not pay much attention to him, as he was walking towards the train going toward the left, witness supposed he wmuld step off". Witness sawT the man about the time the injector flewr off' (this means that the water stopped flowing into the boiler). Witness shut off the steam to correct this, which did not require a minute. Witness did not take much notice of the man, because at the time there were other objects on the track beyond that attracted his attention, which proved to be workmen at work on the track in cut some distance beyond. Witness never gives signals when persons are coming towards the train, and never stops train for persons on the track, because he supposes they will get off. That witness had never made a run without meeting people on the track, and they always get off. It is down grade from Elkton to place of accident. The train -was equal to eighteen loaded cars, one and a half enrpty cars being counted as a loaded car. Could not have stopped train under 200 or 300 yards by blowing down-
P. P. Shiflett, another witness introduced by the defendant, testified that, as justice of the peace, he presided at the inquest upon the body of Thomas IT. Sites; saw that his face was bruised, but did not remember which side of the face; that the body was lying at the station for some hours, and no steps taken to bury it; that, a subscription was proposed, and a few did the necessary work to get body ready for burial; and that Mr. Shepp read the finding of the jury.
W. J. Runkle, another witness for the defendant, testified that he was one of the coroner’s jury; that the face of the deceased was bruised on the left cheek, was cut. and bleeding; that the body was brought there several hours after the accident; that there was no injury back of the head; only injury was on the face. On cross-examination, witness stated that the body was placed in the depot several hours after the accident and remained there until 12 o’clock next day — no coffin; that, it was sent for by Mr. Sites’ friends from 10 to 2 o’clock on the day after he was killed; that the citizens had taken some steps to have the body buried; and that the coroner’s inquest Avas at night.
And then the plaintiff introduced R. A. Thurmond, who testified that he kneAv Tom Sites; that Sites lived near Taylor
This, as certified by the trial court, was all the evidence adduced at the trial, and it is the subject of the defendant’s bill of exceptions, Ho. 1, when, in the nature of things, it should have been the subject of the last bill of exceptions taken by the defendant. Taken altogether, it cannot, in reason, be said that there is any real conflict between the evidence of the plaintiff’ and that of the defendant.
It is true that four of the witnesses introduced for the plaintiff, to-wit: George W. Murray, A. J. Whitlock, George Clatter-buck and Abraham Billhimer, testify to circumstances from which they seem to draw the inference that the deceased was not entirely bereft of the sense of hearing; or, in other words, that he was'not a totally deaf-mute, but could hear some. Tor instance, the witness Murray, a plasterer, who says that he had had no experience with deaf-mutes, yet testifies that he thought Sites had heard knocking in the building, as he had called Avitness’ attention on one occasion, by putting his hands to his ears, that he heard the sound of the hammer; and he adds : “ He was a mute, and you know how much a deaf-mute can hear. Sites made the impression on my mind that he heard better than Decatur Bear. Bear could hear train whistle at Elkton, and Sites could hear better.” Hoav, we are not informed Avhether or not Decatur Bear Avas a deaf-mute, but he certainly Avas not, if, as stated by Murray, lie could hear the sound of the whistle from Elkton to his house, a distance of not less than 500 yards; and if the plaintiff’s intestate, Sites, could hear better than Decatur Bear, then he was not totally
Then, whether viewed in the light of all the evidence adduced on both sides, or in the light of the evidence of the plaintiff (defendant in error) alone, the simple case presented is this: On the 24th day of May, 1887, Thomas II. Sites, a deaf-mute, who had once before received an injury, by being on or near the railroad track, and who. had been repeatedly warned by friends and acquaintances to keep off the railroad track, and who had been so warned on the day of his death, and only a very short time before he was killed, while walking on or near the track of the Shenandoah Yalley Railroad, in the
Such being the facts, we may safely venture the remark that not only was there no ground upon which the plaintiff, the defendant in error here, could possibly be entitled to a recovery from the defendant, the plaintiff in error here, but that if there
In the light of the simple and undisputed facts of this case, there can he no difficulty in ascertaining and applying the principles of law appropriate thereto. Though there is, in no just sense, any conflict of evidence as to any material fact, yet, excluding all the evidence of the defendant, the plaintiff in error here, 'there can be no doubt that the facts established by the evidence of the plaintiff, the defendant in error here, present, in the most unquestionable form, a plain case of gross negligence on the part of the plaintiff’s intestate — a case so plain and clear as to preclude the idea of any just claim to a legal recovery against the railroad company. That evidence fails to disclose any fact or circumstance upon which to base any just claim to a recovery; nor can any just inference be drawn therefrom to warrant such a recovery. In other words, when all the evidence of the plaintiff below, the defendant in error here, is carefully scrutinized and weighed, not even one fact or circumstance is disclosed which reasonably tends to show any carelessness or neglect of duty on the part of the railroad company, or its agents, servants, or employees. The substance of the charge in the declaration is, that the deceased came to his death by reason of the carelessness and negligence of the agents, servants, and employees of the railroad company, in running the engine and train in question. Such being the complaint, it must be established by proof, or -there can be no recovery.
In the present case, just before the accident, the plaintiff’s intestate was at the house of Thomas hTaylor, a witness for the plaintiff, who lived within seventy-five yards of the railroad track, and some two miles north of Elkton station. The plaintiff’s intestate expressed his intention to go to Decatur Bear’s, in the direction from which the train was to come, and Naylor, who had heard the train whistle at Elkton, informed
JSToav, Avhat is the kuw of the case ? This court, in N. & W. R. R. Co. v. Harman’s Adm’r, 83 Va. 553, approving the rule as laid doAvn in Second Wood’s Raihvay Bray, 1267, said : “ The rule may be said to be that a railroad company is bound to keep a reasonable lookout for trespassers upon its track, and is bound to exercise such care as the circumstances require to pre\rent injury to them. If the person seen upon the track is an adult person, and apparently in the possession of his or her faculties, the company has the right to presume that he will exercise his senses and remove himself from his dangerous position; and if he fail to do so, and is injured, the fault is his own, and there is, in the absence of wilful negligence on its part., no remedy against the company for the results of an injury brought upon him by his oavu recklessness.”
The plaintiff’s intestate AAras a trespasser upon the company’s track, AA-itli fresh warning of the early approach of the train. Haylor said to him, by AArriting on the little tablet he carried, with him, the train is at Elkton now, don’t go up to Bear’s until the train comes doAvn. He replied by the same medium of communication: “I Avont AA'alk on the track.” But lie Avas heedless of the AA'arniug, and of his promise not to Avalk Qn the track, and in a very feAv minutes got on the track and met a horrible death. Though a deaf-mute, his vision Avas perfect, and it Avas all the more incumbent upon him to look and see the approaching train, the full AÚeAv of which A\ras in no AAray obstructed, and to leave the track, but this ho did not do. To all appearances he was in possession of all his
At the trial below the defendant asked for five several instructions to the jury, the fifth and last of which the court gave, but refused to give the first, second, third and fourth of the series as asked, and modified each of them, and as modified gave them. To which action of the court, modifying said instructions one, two, three and four, the defendant excepted; and this is the subject of the defendant’s second bill of exceptions.
The first instruction is in these words : “ The court instructs the jury that a railroad company is bound to keep a reasonable lookout for trespassers on its track, and to exercise such care as the circumstances require to prevent injury to them. If trespasser is adult, and apparently possesses his faculties, the company has a right to presume that he will exercise his senses and remove himself from his dangerous position, and if he fails to do so, and is injured, the fault is his own, and there is in the absence of wilful negligence on its part no remedy against it for the results of an injury brought upon him by his own recklessness ; and he is-not entitled to recover if the defendant or his employees used reasonable care after the discovery of the plaintiff’s perilous position, to avoid injury to him.”
The court modified this instruction by striking out, in the latter part thereof, the words “ and there is in the absence of wilful negligence on its part no remedy against it for the results of an injury brought upon him by his own recklessness.”
That the court erred in thus emasculating this instruction is
The second, third and fourth instructions, in the series, simply assert two propositions r first, that certain acts and conduct of the deceased, put in issue in the cause, if proven, constituted gross negligence on his part; and second, that if guilty of such contributory negligence,' the plaintiff could not recover unless the injury was wilfully committed. Each of these instructions was modified by the addition of the words, “ unless they shall further believe -from the evidence that the injury could have been prevented by the exercise of reasonable care by the servants of the defendant in charge of the train, after they discovered the plaintiff’s intestate in a perilous position.” Hot only did the court err in making this addition or additions of similar import to each of these instructions, but there was not a scintilla of evidence in- the cause upon which to predicate the modification. By this modification the court, without warrant, assumes that the deceased was discovered by the agents and servants of the company in charge of the train in a perilous position ; and the jury were left to infer that by the exercise of reasonable care the injury could have been prevented. There is not only no evidence that the peril of the deceased was observed, or that in the exercise of reasonable
Tor these reasons the judgment of the court below must be reversed and annulled, the verdict of the jury set aside, and the cause remanded -for a new trial to be had therein in accordance with the views expressed in this opinion.
Judgment reversed.