112 S.E. 628 (Va. 1922), Davis v. Merrill

Citation:112 S.E. 628, 133 Va. 69
Opinion Judge:West, J.
Party Name:J. C. Davis, Director General of Railroads and Agent Under Section 206 of the Transportation Act of 1920, v. E. S. Merrill, Administrator of Claudia Harrell, Deceased
Attorney:F. M. Rivinus and Hughes, Little & Seawell, for the plaintiff in error. H. R. Leary and Tazewell Taylor, for the defendant in error.
Case Date:June 15, 1922
Court:Supreme Court of Virginia
 
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Page 628

112 S.E. 628 (Va. 1922)

133 Va. 69

J. C. Davis, Director General of Railroads and Agent Under Section 206 of the Transportation Act of 1920,

v.

E. S. Merrill, Administrator of Claudia Harrell, Deceased

Supreme Court of Virginia

June 15, 1922

          Error to a judgment of the Circuit Court of the City of Norfolk in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.

          Affirmed.

          SYLLABUS

         The opinion states the case.

         F. M. Rivinus and Hughes, Little & Seawell, for the plaintiff in error.

         H. R. Leary and Tazewell Taylor, for the defendant in error.

          OPINION

         West, J.

          [133 Va. 71] The defendant in error, E. S. Merrill, administrator of Claudia Harrell, deceased, recovered a judgment against John Barton Payne, Director General of Railroads,

Page 629

the immediate predecessor of the plaintiff in error, J. C. Davis, Director General of Railroads and Agent under section 206 of the transportation act of 1920 (41 Stat. 461), in the Circuit Court of the city of Norfolk, for $ 10,000.00, with interest from November 18, 1920, and costs, for negligently and wrongfully causing the death of said Claudia Harrell. The case is here upon a writ of error to that judgment.

         For convenience the parties will be designated as plaintiff and defendant, with respect to their positions in the trial court.

         About one o'clock a. m. on October 11, 1919, the plaintiff's intestate, in company with several others in an automobile, was returning from Ocean Park to her home in Norfolk. When they arrived at the Norfolk and Western Railroad crossing on Brambleton avenue, they were stopped by the closed gates, although no train was approaching. After being called several times, the gateman, Branch A. Ford, came out of a near-by storehouse with a lantern in his hand. The chauffeur asked him to please raise the gates, to which he replied, "there is other crossings you can go over besides this one." The chauffeur told him he didn't have time to go all over town looking for crossings, when there was no train standing there and no train approaching. Ford then left, going towards the tower and started up, mumbling something the driver could not understand.

         As soon as he entered the tower box he raised the gates and as the car was leaving the wood part of the crossing Ford fired three pistol shots at the rear of [133 Va. 72] the car, in quick succession, one of which struck Claudia Harrell in the back, giving her a wound from which she died shortly thereafter in a Norfolk hospital.

         Ford was arrested a few hours later under a warrant charging him with murder. The officers who made the arrest and all other witnesses who saw him that night and next day, except J. T. Routten, testified that he talked and acted as a sane man, and that they saw nothing strange in his conduct. Routten thought he acted strange, and he appeared to him to be upset mentally.

         On January 21, 1920, Ford was adjudged insane and committed to the Southwestern State Hospital for proper care and observation, with instructions to the superintendent to inform the Corporation Court of the city of Norfolk from time to time of his mental condition.

         The defendant contends that the trial court erred:

         1. In overruling the demurrer to the plaintiff's amended declaration.

         2. In refusing to give a certain instruction asked for by the defendant.

         3. In overruling defendant's motion to set aside the verdict of the jury and enter judgment for defendant.

         The plaintiff rests the liability of the defendant on two grounds:

         1. "That the killing of the plaintiff's intestate by the defendant's employee arose out of and was a part of a transaction between the plaintiff's intestate and the defendant company, in which the gateman, Ford, was acting for the defendant company, said transaction being within the scope of the gateman's employment. And

         2. "That the defendant company was responsible for the employment of a servant of the character of [133 Va. 73] the gateman, when it not only knew by reason of its previous discharge of him, but might further have known by the exercise of ordinary care, that he was an incompetent and dangerous person to entrust with duties of the character in question."

         The first assignment of error will be considered along with the third assignment.

          (a) The instruction referred to in the second assignment of error reads as follows:

          "If you believe from the evidence that Ford's duties as crossing watchman for the railroad did not require or authorize him to commit the act which resulted in Claudia Harrell's death, but that it was his personal act, outside of the scope of his duty, then you must find for the defendant."

         The court gave the following instruction as the only instruction in the case:

         "If you believe from the evidence that Ford did not act within the scope of his authority and duty in committing the act which resulted in the death of Claudia Harrell, but outside of the scope of his...

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