Baltimore & O.R. Co. v. Wightman's Adm'r

• Decision Date: 29 November 1877
• Court: Virginia Supreme Court
• Parties: BALT. & OHIO R. R. CO. v. WIGHTMAN'S adm'r.

70 Va. 431

BALT. & OHIO R. R. CO. v. WIGHTMAN'S adm'r.

Supreme Court of Appeals of Virginia.

November 29, 1877

1. Where a railroad company which was incorporated in another state, leases a railroad lying in this state, and operates the same as owner thereof, and an injury occurs on said railroad, the person having the right of action for such injury may sue the railroad company in the courts of this state, and such company has no right to remove the suit to the federal court.

2. In an action under ch. 145, §§ 7-9, Code of 1873, it is not necessary to aver in the declaration for whose benefit the suit is prosecuted.

3. In such an action against a railroad corporation for the killing of a person evidence is admissible to show the condition and circumstances of the family of the deceased, his business qualifications, the condition of his health, the amount he was realizing annually from his employments, the value of his services to his family, and the damage suffered by them in the loss of his care, nurture and instruction.

4. In such an action where the deceased has left a wife and children the jury, in ascertaining the damages, may properly assess the same with reference to the pecuniary loss sustained by the wife and children--first, by fixing the same at such sum as would be equal to the probable earnings of the deceased during the probable period of his life, if he had not been killed, taking into consideration his age, business capacity, experience, habits, health, energy and perseverance; and, second, by adding thereto the value of his services in the attention to and superintendence and care of his family, and in the education of his children, whereof they are deprived by his death.

5. Quæ re: Whether in such an action the jury, in ascertaining the damages, are limited to the pecuniary loss sustained by the family of the deceased, or whether they may consider the physical pain of the deceased, or the mental suffering of the surviving family, or the loss to them of the parent's moral and intellectual training.

6. In such an action it is not competent for the defendant to show that the deceased held policies of insurance on his life for the benefit of his wife and children, and that since his death the amounts called for by such policies have been paid over to his widow and children.

7. When injury or damage happens to a passenger by the breaking down or overturning of a railroad train, or the breaking down of a bridge, or wheel, or axle, or by any other accident occurring on the road, the presumption, prima facie, is, that it occurred by the negligence of the railroad company, and the burden of proof is on the company to establish that there has been no negligence whatsoever, and that the damage has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent.

8. The law in tenderness to human life and limbs holds railroad companies liable for the slightest negligence, and compels them to repel, by satisfactory proofs, every imputation of such negligence. When carriers undertake to convey passengers by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Any negligence or default in such case will make such carriers liable in damages under the statute.

9. The Baltimore and Ohio Railroad Company, as a common carrier of passengers, was bound to exercise the utmost degree of diligence and care in safely transporting William A Wightman, the deceased in this case, on his journey.

10. The slightest neglect, against which human prudence and foresight might have guarded, and by reason of which his death may have been occasioned, renders such company liable in damages for such death.

11. The said railroad company is held by the law to the utmost care not only in the management of its trains and cars, but also in the structure, repair and care of the track and bridges and all other arrangements necessary to the safety of passengers.

12. In order to entitle a party to a continuance on the ground of the absence of a material witness, it is necessary for him to show that he has used due diligence to procure the attendance or deposition of such witness, and upon such a matter the appellate court will not disturb the action of the court below, unless such action was plainly erroneous.

This was an action on the case brought in the circuit court of Shenandoah county, under ch. 145, §§ 7-9, Code of 1873, by George W. Koontz, administrator of William A. Wightman against the Baltimore and Ohio Railroad Company, to recover damages for the death of his decedent, who died from injuries received at the well-known Narrow Passage accident, which occurred on the Valley railroad, which was then leased and operated by the Baltimore and Ohio Railroad Company. The jury rendered a verdict in favor of the plaintiff for $5,000, with interest from March 6th, 1876, for which sum the court gave judgment. To this judgment the defendant obtained a writ of error and supersedeas from one of the judges of this court.

There was a demurrer to the declaration, which was overruled, and the defendants took eight bills of exceptions to the rulings of the court. The ground of the demurrer was that the declaration did not state for whose benefit the action was prosecuted. The first bill of exception was to the refusal of the court to transfer the cause to the United States court. This was on the ground that the plaintiff was a citizen of Virginia and that the defendant was a foreign corporation chartered by the state of Maryland and was a citizen of Maryland. But it was in proof that the defendant was, at the time of the institution of this suit and still was lessee of the Valley railroad from the town of Strasburg, in Shenandoah county, to Harrisonburg, in Rockingham county.

The 2d, 3d, 4th and 5th exceptions were taken to rulings of the court admitting evidence as to who constituted the family of Wightman; as to his marriage with Mrs. Wightman; as to his relations with his family, how he provided for them, his capacity to instruct and prepare his children for education, and the annual value of his services in his employments, and also in managing and superintending the business of his family. The 6th exception was to the refusal of the court to permit the defendant to prove that Wightman held policies of insurance on his life for at least $5,000 for the benefit of his wife and children, and that since his death the amount called for by said policies had been paid over to his wife and children.

The 7th exception was to the instructions given to the jury on the motion of the plaintiff. These instructions are set out in the opinion of Judge Staples. And the 8th was to the refusal of the court to continue the cause. The facts are sufficiently stated in the opinion.

Williams & Brother, for the appellants.

M. Walton, for the appellee.

OPINION

STAPLES, J.

A preliminary question in this case to be settled, is, whether the circuit court erred in refusing to remove the case to the circuit court of the United States for the western district of Virginia. The defendant, the Baltimore and Ohio Railroad Company, is a corporation chartered by the state of Maryland. It is also, and was when this suit was brought, the lessee of a railroad from Strasburg to Harrisonburg, in this state, belonging to the Virginia Midland railroad company, a Virginia corporation, and was controlling and operating said railroad under said lease, as owner and proprietor, at the time of the injuries committed, as set forth in the declaration. The defendant has not produced the lease nor given evidence of its contents. We are, therefore, not informed as to the precise terms and conditions upon which the lease was granted. All that we know is, that the defendant is operating the road as owner and exercising the powers and privileges granted its lessee by the charter of incorporation. What, then, is the status in Virginia of the defendant, a Maryland corporation, with reference to this road?

The cases generally agree that a corporation created by the laws of one state can have no legal existence outside of the limits of that state. It may, however, make contracts, transact business, and even exercise corporate functions in another state with the consent of the latter, express or implied. In the Baltimore and Ohio R. R. Co. v. Gallahue's adm'r, 12 Gratt. 655, this court decided that under the statutes authorizing that company to construct its road across the territory of Virginia, the Baltimore and Ohio Railroad Company, as to such road, was to be regarded as a Virginia corporation.

In Railroad Company v. Harris, 12 Wall. U. S. R. 65, the supreme court of the United States decided that the Baltimore and Ohio Railroad Company having under an act of Congress constructed a lateral branch of its road in the District of Columbia, was by reason thereof liable to suit in that district as if it had been an independent corporation of that locality.

The court did not rest its decision upon the ground, however, that the act of congress had made the Baltimore and Ohio Railroad Company a corporation of the district, but upon the ground that the act operated as a license to the company to construct its road there; and having accepted the license, the company had placed itself in the position of a domestic corporation for all the purposes at least of being sued in that locality. The court say they could see no reason why one state may not make a corporation of another state, as there organized and conducted, a corporation of its own, quo ad hoc any property within its territorial limits.

See also Maryland v. Northern Central R. R. Co., 18 Mary. R. 193; ...