125 Va. 511 | Va. | 1919
after making the foregoing statement, delivered the following opinion of the court:
The turning points of the case before us lie within a very narrow compass, and, under the rules on the subject, too firmly established to be changed except by statute, the contributory negligence of the plaintiff’s intestate was the proximate cause of his death and bars any recovery by the plaintiff. And there is no statute in force with us, State or Federal, which changes such common law rule as it affects others than employees of a railroad company.
In both of the cases of Hubbard v. Boston, etc., R. Co., 162 Mass. 132, 38 N. E. 366, and N. Y. S., etc., R. Co. v. Moore, 105 Fed. 725, 45 C. C. A. 21, especially urged upon
To the same effect are the United States Supreme Court cases above cited, also relied on by the plaintiff. (144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; and 95 U. S. 161, 24 L. Ed. 403). '
To the same effect also are the following Virginia cases cited and relied on by the plaintiff. So. Ry. Co. v. Bryant, 95 Va. 212, 28 S. E. 183; Higgins v. So. Ry. Co., 116 Va. 890, 83 S. E. 380.
As to the other Virginia cases cited and relied on by plaintiff, namely, those of Southern Ry. Co. v. Abee’s Adm’r, supra, 124 Va. 379, 98 S. E. 31; N. & W. Ry. Co. v. Holmes, supra, 109 Va. 407, 64 S. E. 46; and N. & W. Ry. Co. v. Munsell, supra, 109 Va. 417, 64 S. E. 50, which involve travelers on foot and which hold that the traveler was not guilty of contributory negligence in going on the crossing in front of a steam railroad train near by: They are all cases where the accident occurred in the night-time and in other respects differ from the case before us. In the instant case the danger was imminent and apparent to a traveler at all alert to the perils of his position and making reasonable use of his faculty of sight, whereas in the cases just mentioned the situation was otherwise.
The case of Danskin v. Penn. R. Co., supra, 76 N. J. Law, 660, 72 Atl. 32, 22 L. R. A. (N. S.) 232, and the note thereto, involve the consideration of when it is negligence for a
There was in truth, in contemplation of law, an intervening cause in the instant case between the negligent speed of the passenger train and the accident, and that was the contributory negligence of the plaintiff’s intestate aforesaid. And the law regards such an intervening act as the proximate cause of an injury suffered by the actor. 1 Thompson on Neg., sec. 64. If the act which constituted such negligence had been such that under the circumstances it was such as a reasonably prudent person would have committed, and hence ought not to have been imputed to the plaintiff’s intestate as a fault, then indeed such act would not be regarded as an intervening proximate cause, because it would have been such an act as the railroad company might reasonably have foreseen as likely to have occurred or as reasonably possible of occurrence under the circumstances without fault of the actor, and hence the injurious result, or some injurious result such as did happen, might have been reasonably foreseen by the railroad company as likely to occur, or as reasonably possible of occurrence, without fault of any other person, from its own wrongful act in running its train in an unlawful speed. And such foresee
For the foregoing reasons we find no error in the action of the trial court in sustaining the demurrer to the evidence and the judgment under review must be affirmed.
Affirmed.