Adm&r v. Wash.

• Decision Date: 07 April 1887
• Citation: 83 Va. 99,5 S.E. 171
• Court: Virginia Supreme Court
• Parties: Nichols' Adm'r v. Washington, O. & W. R. Co.

5 S.E. 171

(83 Va. 99)

Nichols' Adm'r

v.Washington, O. & W. R. Co.

Supreme Court of Appeals of Virginia.

April 7, 1887.

Railroad Companies—Negligence—Switch Crossing—Implied License.

The shortest route from a village to its railway station was a path across a switch. The company's agents, with the knowledge of its officers, habitually parted the cars standing on this switch so as to leave a space between them near this path. Plaintiff's intestate, on his way to the station, crossed this track when such space was only 18 inches, and was caught and killed by the sudden backing of the train. When he reached the track, he could not see the engine, and he had no notice that the cars were about to start. Held, that the company was liable, its acts, in keeping this crossing open, constituting an invitation to the public to use it in coming to the station.¹ Fauntleroy, J., dissenting.

Error to circuit court, Loudoun county.

Holmes Conrad and Ed. Nichols, for plaintiff in error. Barton & Boyd and C. P. Janney, for defendant in error.

Hinton, J. This is an action of tort, brought by the personal representative of Francis E. Nichols, to recover damages for injuries sustained by him which caused his death. A trial was had before a jury, which resulted in a verdict for the plaintiff for $4,000. This verdict the court, upon the defendant's motion, set aside; and to this action of the court, as well as its actionin refusing certain instructions and in giving others, the plaintiff duly excepted. At the next term the case was submitted to the court, when a judgment was rendered for the defendant, and thereupon this writ of error was taken. The facts certified as proven on the first trial, and submitted to the judge on the second, with the plat filed as a part thereof, show the topography of the ground, the location of the depot and other buildings in the vicinity, and the position of the cars on the defendant's track immediately preceding the accident to have been as follows: The main track of the defendant's railroad runs nearly due east and west; and about 150 yards south thereof and parallel thereto is a pike running through the center of the village of Purcell-ville. From this pike a road runs in a northwesterly direction across the railroad to Hillsboro. Extending eastwardly from this road, and immediately south of the railroad, is the freight depot, and adjoining which, but still further east, is the passenger depot. Along the north side of both freight and passenger depots is a platform, usually more or less obstructed by the freight and express goods habitually unloaded thereon; and along the east end of the passenger depot there is also a platform with three steps at its southern terminus extending to the ground. Beginning at a point on the main track, some distance west of the Hillsboro road, is a switch which extends eastwardly across said road, and around and beyond said depot buildings, and from a point on the Hillsboro road, about 60 yards south of the passenger depot, is a path which extends towards the steps at the south-eastern corner of the passenger depot; and this path is usually taken by persons going to and from the depot. The land east of the Hillsboro road, and south of the railroad, is open and nearly level, while that west of the Hillsboro road, and south of the railroad, is a wood, dense near the pike and sparsely timbered as it extends north-westwardly towards the switch. The switch, or rather that portion of the switch west of the Hillsboro road, runs through a cut so deep that, by reason thereof, and the intervention of a warehouse, which stands near the track, the smoke-stack of an engine can only be seen by persons going along the before-mentioned path while in the line of vision between the warehouse and the switch. It appears that it was the invariable custom of the agent at the depot to part freight cars immediately after they were left or placed on the switch at a point nearly opposite the passenger depot, for the purpose of affording a passage to the patrons and employes of the road, and it specially appears that it had been done in this instance, although it would seem that from lack of assistance the opening left was scarcely as wide as usual. At no time was anything said or done by the defendant's agents or employes to convey to the public the idea that they should not cross the track at these openings. On the morning of the accident, there were standing on the switch two or more cars west of the road, and five cars east of the road. These five cars had been parted on the preceding day, by the company's agent, a distance of 18 inches or more, about midway between the path and the steps at the southeast corner and the platform of the passenger depot, for the express purpose...