Southern Ry. Co v. Rice's Adm'x

Decision Date12 June 1913
Citation115 Va. 235,78 S.E. 592
CourtVirginia Supreme Court
PartiesSOUTHERN RY. CO. v. RICE'S ADM'X.

1. Negligence (§ 76*)—Contributory Negligence—Violation of Ordinance.

As a. general rule a person negligently injured cannot recover if he was at the time of the injury doing some act in violation of a statute or ordinance which contributed to his injury.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§, 104-107; Dec. Dig. § 76.*]

2. Negligence (§ 119*) — Contributory Negligence—Pleading—Proof.

Contributory negligence may be shown under a plea of not guilty.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. § 119.*]

3. Death (§ 57*) — Contributory Negligence—Pleading—Proof.

Under an allegation of the plea in an action for intestate's negligent death that intestate "was guilty of contributory negligence, " defendant could introduce any evidence showing that intestate was per se guilty of contributory negligence or circumstances tending to show contributory negligence.

[Ed. Note.—For other cases, see Death, Cent. Dig. § 74; Dec. Dig. § 57.*]

4. Trial (§ 260*)—Refusal of Instructions.

The refusal to instruct that, while the jury were the judges of the facts, the court was the judge of the law and it was the jury'sduty to accept and act upon the law as stated in the instructions, the jury applying the facts as they might determine them thereto, was not error, where the court instructed that it was the judge of the law as applied to the case, and the jury were the judges of the facts and the weight of the testimony.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.2-*]

5. Master and Servant (§ 274*)—Injuries —Admission of Evidence.

As a rule it is not permissible, in an action for a railroad employé's death, to show that deceased had the reputation among his fellow employés as a fast runner and had previous to the fatal accident disregarded speed ordinances, etc.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. 939-949; Dec. Dig. § 274.*]

6. Master and Servant (§ 274*)—Injuries —Admission of Evidence.

In an action for a railroad employé's death by derailment of his engine, evidence that decedent had the reputation of running fast and had exceeded the speed ordinances before the accident was not admissible, where the uncontradicted evidence showed that he was running his engine at 12 to 15 miles an hour instead of the maximum of 4 miles an hour permitted by the ordinances.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. § 274.*]

Error to Law and Equity Court of City of Richmond.

Action by Rice's Administratrix against the Southern Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Munford, Hunton, Williams & Anderson, of Richmond, for plaintiff in error.

Hunsdon Gary, and Wm. Crump Tucker, of Richmond, for defendant in error.

BUCHANAN, J. This is an action to recover damages for the alleged negligence of the Southern Railway Company, which resulted in the death of the plaintiff's intestate, James G. Rice.

The decedent was an engineman of the railway company in charge of one of its yard engines. His death was caused by the derailment and overturning of his engine at or near Fourteenth street, in the city of Richmond. Conceding that the evidence is sufficient to show that the defendant company was guilty of negligence in the construction and maintenance of its track where the engine was derailed, there was evidence tending to show that the deceased, when operating his train at the time he was injured, was violating a speed ordinance of the city of Richmond, and that, if he had been operating his engine within the speed limit, there would have been no accident, and he would have suffered no injury, notwithstanding the condition of the track.

The speed limit fixed by the ordinance for engines, etc., on a railroad track in a street was not to be in excess of four miles an hour and any one who propelled it at a greater rate of speed or caused it to be done, or assisted in doing it or causing it to be done, was subject to a fine of $10.

There was evidence that the engine operated by the plaintiff's decedent was moving with 15 loaded and 5 empty cars from the eastern end of the city over or across Fourteenth street, on a slight upgrade, on its way to Manchester; that just before reaching the the line of Fourteenth street, or while in the street, the engine was derailed, passed over the street, over the sidewalk, into the yard on the west side of the street, over or across a side track, thence to another side track on which was standing a box car, with which the engine collided and was overturned. The injuries causing the death of the plaintiffs intestate were from escaping steam, resulting from the overturning of the engine. The evidence further tended to show that the distance which the engine moved after it was derailed before it collided with the box car was some 130 feet or more, and that if the engine had been running within the speed limit it would not have gone after it was derailed with its train anything like that distance.

The principal question involved in this writ of error is as to giving and refusing instructions.

The contention of the defendant company is and was that the plaintiff was not entitled to recover if it appeared from the evidence that at the time her decedent was injured he was operating his engine in violation of the speed ordinance of the city, and that the excessive speed at which he was running his engine contributed to his injury. The plaintiff, on the other hand, insisted and insists that such violation of the ordinance did not bar her recovery unless the jury believed from the evidence that the plaintiff's intestate was operating his engine at a negligent rate of speed, and, if so, that such negligence contributed to his injury. In other words, the question involved is whether the violation of the ordinance such violation contributing to the plaintiff's intestate's injury, amounted as a matter of law to contributory negligence, or was merely evidence tending to show contributory negligence.

The railway company insists that the case of Atlantic & Danville R. Co. v. Reiger, 95 Va. 418, 28 S. E. 590, and the cases in which it has been followed, sustain the railway company's contention, while, on the other hand, the plaintiff claims that the case of Chesapeake & Ohio Ry. Co. v. Jennings, 98 Va. 70, 34 S. E. 986, directly, and certain other of our cases indirectly, sustain her contention.

Without reviewing the cases relied on by either the plaintiff or defendant or attempting to harmonize the real or apparent con-flict between them, if any, we will consider the question involved here as one of first impression in this state, since none of the cases relied on by either side present the question of the right of an engineman to recover damages from his employér for injuries suffered when running his engine in violation of a city ordinance and such violation directly contributed to his injury.

The text-books seem to be agreed that the general rule is that, if the person injured was at the time he received the injury doing some act in violation of a statute or ordinance, he cannot recover, if such violation contributed to his injury.

Shearman & Redneld, in their work on Negligence (5th Ed.) vol. 1, § 104, lay it down as the general rule that: "If the plaintiff is acting in violation of a statute or ordinance at the time the accident occurred, and such violation proximately contributes to his injury, he is guilty of contributory negligence. But, if such violation does not contribute to the injury, it is no defense."

Labatt on Master & Servant, § 362, says: "There can be no question that where a servant's injury was proximately caused by the fact that he was violating a statutory or municipal ordinance, the meaning and effect of which are perfectly clear, he cannot recover damages."

In Cooley on Torts (3d Ed.) vol. 1, pp. 273, 274, it is said that the fact that a party injured was at the time violating the law does not put him out of the protection of the law; he is never put by the law at the mercy of others. If he is negligently injured on the highway, he may have redress, notwithstanding at the time he was upon the wrong side of the road, provided that act did not contribute to his injury.

29 Cyc. 525, in stating the general rule, says that: "If the person injured was at the time of receiving the injury doing some act in violation of a statute or ordinance, such person cannot recover if such violation contributed to the injury; the violation amounting to contributory negligence."

In 7 Am. & Eng. Enc. Law (2d Ed.) the general rule is stated as follows: "It is not contributory negligence per se for the injured person at the time of his injury to be engaged in a...

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