Keed v. Richmond & A. R. Co

• Decision Date: 08 December 1887
• Citation: 84 Va. 231,4 S.E. 587
• Court: Virginia Supreme Court
• Parties: Keed v. Richmond & A. R. Co.

4 S.E. 587

84 Va. 231

Keed

v.Richmond & A. R. Co.

Supreme Court of Appeals of Virginia.

December 8, 1887.

1. Carriers—Negligence—Unsafe Platform—Contributory Negligence.

The plaintiff, while staying over at a station on the defendant's road at night, went out onto the platform, and walked to the end of it, where she fell off and was injured. The night was dark, and the platform lamp had been temporarily removed to be trimmed. Held, that the plaintiff was guilty of recklessness, and could not recover. ¹

2. Equity—Practice—Direction of Issue out of Chancery.

A verdict of a Jury on an issue sent up for trial by a court of chancery to a court of law may be set aside or approved by the court of chancery.

3. Receiver—Suit against—Leave of Court.

A receiver, as such, cannot be sued in any court other than that by which he was appointed, except with the consent of such court, and the granting or refusing of such consent rests in the discretion of the court. This rule is not affected by the constitutional right of citizens to sue in federal courts in certain cases.

Appeal from circuit court of city of Richmond; B. R. Wellford, Jr., Judge.

This action was brought by Mrs. D. A. Reed against the Richmond & Alleghany Railroad Company to recover compensation for injuries sustained by the plaintiff owing to a fall from a platform at one of the defendant's stations. The judgment of the court below was in the defendant's favor. The plaintiff appealed.

The appellant, a citizen of the state of Indiana, filed her petition in the court below, alleging that on the twenty-second of July, 1885, she took passage on one of the trains of the Richmond & Alleghany Railroad Company at the town of Lexington, intending to go to Bremo, a station on the same road; that upon the arrival of the train at Scottsville, which was about three o'clock in-the morning of the next day, she left the train, intending to resume her journey for the point of destination a few hours thereafter; that, upon leaving the train at Scottsville, she proceeded to the reception room for passengers in the depot building near by, it being then quite dark; that, a little while afterwards, she went out on the platform in front of the reception room, and, there being no sufficient light to enable her to see her way, she fell from the platform to the ground, a distance of several feet, in consequence of which she sustained serious bodily injuries. It was also averred in the petition that ail the franchises, property, rights, etc., of said railroad company were in the hands of certain named receivers, appointed by an order of the said court; and accordingly the prayer of the petition was that the petitioner be granted leave "to institute against the said receivers in any court of common law, having jurisdiction of the subject, such action" as she might be advised to be proper for the recovery of such damages as she had sustained by reason of her fall as aforesaid. To this petition the receivers filed their answer, in which they denied liability on their part to the petitioner, alleging that their "duty to the petitioner was fully performed when she was safely carried to Scottsville, and safely put off the train; that it was not their duty to provide accommodations for passengers to spend the night, and that it was negligence on the part ofthe petitioner to walk upon the platform in the darkness." "It is true, " the answer went on to say, "that there was no railing around the platform, and to have put one there would have rendered it useless for the purposes for which it was built, namely, to transfer freight to and from the cars; and, even if there was no light on the platform, that circumstance did not constitute a violation of duty on the part of these respondents, because it was not a time when a train was to arrive or depart, and it was not to be expected that passengers who had arrived would remain in the depot all night, as petitioner declared her intention to do, after an agent of these respondents had offered to conduct her to a hotel." Therefore, the answer concludes, the petitioner was herself guilty of negligence which caused the injuries complained of. Upon the filing of the answer, the court directed an issue to be tried on the law side of the court, to ascertain what damages, if any, the petitioner was entitled to recover. A jury was accordingly impaneled, and having heard the evidence, returned a verdict for the petitioner for $1,300 damages; and thereupon the defendants moved the court to set aside the verdict, and for a new trial, but the motion was overruled. The court thereupon ordered that the verdict, and all the proceedings had upon the trial of the issue, be certified to the chancery side of the court; and also that it be certified that, in the opinion of the court, the verdict was contrary to the law and the evidence, which was accordingly done; after which the decree appealed from was entered, whereby the petition was dismissed, at the costs of the petitioner.

Edgar Allan, J. 8am'l Parrish, Jas. M. Donvan, and P. C. Moon, for appellant. Johnston, Williams & Boulware and Christian & Christian, for appellee.

Lewis, P., (after stating the facts as above.) The first assignment of error is that "the circuit court erred in refusing leave to the appellant to bring her action at common law in any court of competent jurisdiction, as she had the constitutional right (she being a citizen of the state of Indiana) to have her cause of action heard and determined in a federal court sitting in Virginia." So far as the claim of a right to sue in a federal court is concerned, it may be remarked that no such right was specifically claimed in the court below, and, if it had been, the result would have been the same. For there is no better settled proposition than that a receiver, as such, cannot be sued elsewhere than in the court by which he was appointed, without the leave of such court first had and obtained, and whether leave to sue will be granted, rests in the discretion of the court. This principle has been nowhere more emphatically asserted than by the supreme court of the United States in a number of cases, and by this court in the recent case of Melendy v. Barbour, 78 Va. 544. Indeed, such leave is essential to the Jurisdiction of any other court, state or federal, in such a case. Peale v. Phipps, 14 How. 368; Barton v. Barbour, 104 U. S. 126. The doctrine, and the reasons upon which it rests, are so fully and clearly laid down in the cases just mentioned, that we deem it unnecessary, in this connection, to do more than simply to refer to those cases. They are decisive of the question here raised, and hence the first assignment of error is not well taken.

The second, third, and fourth assignments of error relate to certain instructions, some of which were given and others refused, upon the trial of the issue, and will be considered together. The first and second of these instructions were offered by the appellant, and were refused, and are as follows: "(1) The court instructs the jury that if they shall believe, from the evidence, that the plaintiff, being a passenger on the line of the defendant company, was left by the agents and servants of said company, in the night-time, in their waiting-room for passengers at Scottsville, and shall further believe that such waiting-room was not lighted so as to show the dangers, if any. of walking upon the platform in front of said waiting room, then the failure to have thesame so lighted was such negligence on the part of the defendant company as to render them liable in this issue. (2) The court further instructs the jury that, in considering the question of negligence, they may take into consideration all the facts in regard to the accommodations provided for the reception and necessary comfort of female passengers in the waiting-room at Scottsville, and...