Norfolk & W. Ry. Co v. Wood

• Citation: 37 S.E. 846,99 Va. 166
• Court: Supreme Court of Virginia
• Decision Date: 31 January 1901
• Parties: NORFOLK & W. RY. CO. v. WOOD.

99 Va. 166

37 S.E. 846

NORFOLK & W. RY. CO.

v.WOOD.

Supreme Court of Appeals of Virginia.

Jan. 31, 1901.

RAILROADS — INJURY TO LICENSEE — PLEADINGS—DECLARATION—DEMURRER —NEGLIGENCE.

1. Under Code, § 3272, providing that on demurrer the court shall not regard any defect in the declaration, unless there be omitted something so essential to the action that judgment according to law and the very right of the cause cannot be given, a declaration against a railway company for injuries to a licensee on a depot platform is not demurrable on the ground that it is obscure, uncertain, and prolix.

2. Where, in an action against a railway company for injuries caused by a freight train running against a depot platform on which plaintiff was standing, the declaration explains plaintiff's being in that position and his relations to the company only by the allegation that he was standing on the platform in pursuit of his lawful business, and without default on his part, the allegation is sufficient to show that he was not a trespasser, and that he wasentitled to such rights and consideration as were due to a licensee.

3. In an action against a railway company for injuries, the declaration alleged that it was defendant's duty to keep its roadbed, switches, and connected appliances in proper condition for running its trains; to provide and use proper brakes and machinery therefor; to employ competent servants to manage its trains, and run them at a safe and proper rate of speed, so as to avoid injuring persons in and on its station property, and especially the plaintiff, who was standing on the platform of its depot, in pursuit of his lawful business, without any default on his part; that defendant failed to perform any of those duties, and, through its careless, negligent, and improper conduct in the particulars named, one of its freight trains was run against the platform, and against plaintiff standing thereon, inflicting the injuries complained of. Held, that the complaint did not state a cause of action, since it showed plaintiff a mere licensee, and as to him the railroad company owed none of the duties specified.

Error to circuit court, Augusta county.

Action by one Wood against the Norfolk &. Western Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Jos. I. Doran and Sipe & Harris, for plaintiff in error.

Patrick & Gordon, for defendant in error.

BUCHANAN, J. The declaration sets out at great length that it was the duty of the defendant company to keep its roadbed, switches, and connected appliances in proper condition for running its trains; to provide and use proper and safe brakes, couplers, and machinery therefor; to properly inspect the same; to employ competent servants to manage its trains, and to run them at a safe and proper rate of speed, so as to avoid injuring persons in and upon the station property and station platform at Basic City, especially the plaintiff, who was standing on the platform of the freight depot at that point, in pursuit of his lawful business, and without default on his part. It then avers that the defendant failed to perform all or any of those duties, and that through its careless, negligent, and improper conduct in the particulars named one of its north-bound freight trains, propelled by two engines, was run against the freight depot and platform, and against the plaintiff standing thereon, with great force and violence, inflicting the injuries complained of, which are fully set out.

The defendant's demurrer to the declaration, and to each count thereof, was overruled, and this action of the court is the first error assigned.

Two objections are urged to the declaration. One is that it is obscure, uncertain, and prolix in its averments; and the other is that it does not state a good cause of action.

The declaration, which Is a very long one, containing six counts, and covering more than 18 pages in the printed record, does not set out the plaintiffs case with that clearness and directness which is so much to be desired and commended in pleading, yet it is not subject to demurrer unless it omits something so essential to the action that judgment according to law and the very right of the case cannot be given (Code, § 3272), —which is the other ground of demurrer. It is insisted that the declaration fails to set forth a cause of action, in this: that it does not aver the relation which existed between the defendant company and the plaintiff when injured, so that the court can see whether the defendant owed the plaintiff the duty which it is averred has been violated.

It has been held in several cases by this court that it was not necessary in cases like this to aver in terms the relation which existed between the plaintiff and the defendant at the time of the injury (though that is clearly the better practice), but that It is sufficient if such averments are made as to the circumstances under which the plaintiff was injured as will show the existence of the duty which it is averred has been neglected, and which neglect has caused the plaintiff's injury.

An action for negligence only lies where' there has been a failure to discharge a legal duty. If there is no duty, there can be no negligence; and, although a defendant owed a duty to the person, yet, if he did not owe it to the plaintiff, his action will not lie. The duty must be due to the party injured, and the declaration must show this. 1 Shear. & R. Neg. § 8; Cooley, Torts (2d Ed.) 791, 792; Bish. Noncont. Law, § 446; 2 Jag. Torts, 826; Railroad Co. v. Whittington's Adm'r, 30 Grat. 805, 810; 1 Chit. PI. 270, 397.

The declaration does not aver in terms the relation which existed between the plaintiff and the defendant at the time of the injury, but it does aver that the plaintiff was on the platform of the defendant's freight depot, "in and about the pursuit of the plaintiff's lawful business, without any default on...