78 S.E. 592 (Va. 1913), Southern Railway Company v. Rice's Administratrix

Citation:78 S.E. 592, 115 Va. 235
Opinion Judge:Buchanan, J.
Party Name:Southern Railway Company v. Rice's Administratrix
Attorney:Munford, Hunton, Williams & Anderson, for the plaintiff in error. Hunsdon Cary and Wm. Crump Tucker, for the defendant in error.
Case Date:June 12, 1913
Court:Supreme Court of Virginia
 
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Page 592

78 S.E. 592 (Va. 1913)

115 Va. 235

Southern Railway Company

v.

Rice's Administratrix

Supreme Court of Virginia

June 12, 1913

Error to a judgment of the Law and Equity Court of the City of Richmond in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.

Reversed.

SYLLABUS

The following instructions were given by the court:

1. The court instructs the jury that if they believe from the evidence that at the time of the accident mentioned in the declaration and evidence the decedent, Jas. G. Rice, was employed as a locomotive engineer by the defendant company, and was performing his duties as such locomotive engineer, as set forth in the declaration, then the defendant company owed him the duty of exercising ordinary care to provide, and by supervision and inspection to maintain, a reasonably safe railroad track and roadbed, and reasonably safe rail joints and appliances in connection therewith, as were reasonably necessary to render the said railroad track reasonably safe for the use of the said Jas. G. Rice while performing his duties as such locomotive engineer. And whether the defendant company did, at the time in question, provide and so maintain such a reasonably safe track and rail joints as an ordinary prudent person would have done, under the circumstances, for the use of said Jas. G. Rice while so engaged in the performance of his duties, is a question of fact for the determination of the jury, from the evidence before them in this case.

Ordinary care is such care as persons of ordinary prudence would exercise under similar circumstances. And if the jury believe from the evidence that by reason of the failure of the defendant company to exercise such care the track of the defendant and joints of the rails in and near 14th street in the city of Richmond, mentioned in the evidence, became unsafe and caused the derailment mentioned in the evidence, and thereby the death of Jas. G. Rice was occasioned while he was in the exercise of such reasonable care as a prudent person would exercise under the same circumstances, then they should find for the plaintiff.

2. The court instructs the jury that knowledge by any railroad employee injured by the defective or unsafe character or condition of any railroad machinery, ways, appliances or structures shall be no defense to an action for injury caused thereby; and if the jury believe from the evidence that James G. Rice was injured by reason of the fact that the condition or character of the defendant company's machinery, ways, appliances or structures were not reasonably safe, viz.: that the track and roadbed in question crossing 14th street were out of repair or were improperly constructed, and were thereby rendered unreasonably unsafe to said Rice in the performance of his duties as engineer, and if they believe that the deceased, Rice, was attending to his accustomed duties, using such care as a man of ordinary prudence would use under the circumstances therein at the time he received the injury which caused his death, they must find for the plaintiff, notwithstanding they may believe from the evidence that he had knowledge of the unsafe condition or character of the said track and roadbed.

3. The court instructs the jury that the defendant was not the insurer of the plaintiff's intestate, and was not bound to provide the best and safest machinery, ways, appliances or structures, and if in the exercise of ordinary care it provided such as were reasonably safe for operating its trains at a reasonable and proper rate of speed, it discharged its full duty to the plaintiff's intestate, even though the jury shall further believe that safer machinery, ways, appliances or structures might have been employed.

4. The court instructs the jury that if they believe from the evidence that the tracks of the defendant company at the place of the accident were in a reasonably safe condition, they must find for the defendant.

5. The court instructs the jury that the burden is upon the plaintiff to show by a preponderance of the evidence that the death of Jas. G. Rice was due to the negligence of the defendant, its servants or agents, as alleged in the declaration, and the jury is instructed that if they believe from the evidence that his death may have resulted from one of two causes, for one of which defendant is responsible, but not for the other, the plaintiff cannot recover, nor can plaintiff recover if the jury believe from the evidence that it is just as probable that the death of the plaintiff's intestate was caused by the one as by the other.

6. The court instructs the jury that if they believe from the evidence that the accident to the plaintiff was caused by a piece or stick of wood falling upon the track of the defendant, and if the jury further believe from the evidence that the defendant's road at the place of accident had been inspected in the manner ordinarily in use by prudently conducted roads under like circumstances without discovering said piece or stick of wood, they must find for the defendant.

7. The court instructs the jury that if they believe from the evidence that an ordinance of the city of Richmond required engines at the place of the derailment to be propelled at no greater rate of speed than four miles an hour, and if the jury further believe from the evidence that at the time of the derailment the plaintiff's intestate was running the train at a greater rate of speed than four miles an hour, and if the jury further believe that the speed at which the train was being moved was negligent and in any way contributed to cause the derailment, the...

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