Baltimore & O.R. Co. v. Sherman's Adm'x
| Decision Date | 12 September 1878 |
| Citation | 71 Va. 602 |
| Court | Virginia Supreme Court |
| Parties | BALT. & OHIO R. R. CO. v. SHERMAN'S adm'x. |
1. In an action against a railroad company, it is not necessary to aver in the declaration that it is a corporation, nor is it necessary to prove on the trial that the defendant is a corporation, unless with the plea there is filed an affidavit denying that it is. The court will ex officio take notice of the fact.
2. In an action under the statute by the administrator of a party killed upon a railroad track against the company, the plaintiff may upon the trial, and before the jury has rendered a verdict, introduce evidence to prove that the deceased left a widow and children, and the number and ages of the children.
3. In an action on the case by the administrator of a person killed upon a railroad track against the company, the deceased not being an employee of the company or passenger, but walking on it for his own convenience, but not of necessity, it was held in this case, upon the evidence, that there was little ground to charge negligence upon the company; but if there was negligence on the part of the company, there was contributory negligence on the part of the deceased; and certainly the negligence of the company, if any, was not so gross as notwithstanding the contributory negligence of the deceased to render the company responsible for the damages sustained by the plaintiff from the killing of the deceased.
This was an action of trespass on the case in the circuit court of Shenandoah county, brought in December, 1874, by the administratrix of Nathan G. Sherman, deceased, against the Baltimore and Ohio Railroad Company, to recover damages for the killing of the said Sherman upon the road of the said company. On the trial the defendant took several exceptions to rulings of the court, two of them to the refusal of the court to give some thirty-six instructions asked for by the company, and another to the giving by the court of twenty-eight asked by the plaintiff; but these were not considered by this court. There was a verdict and judgment in favor of the plaintiff for $3,000. And thereupon the company applied to a judge of this court for a writ of error and supersedeas; which was awarded. The case is fully stated by Judge Moncure in his opinion.
Williams & Williams and William B. Compton, for the appellant.
Moses Walton and H. C. Allen, for the appellee.
MONCURE, P.
On the 14th day of December, 1874, Juan F. Sherman, administratrix of Nathan G. Sherman, deceased, brought an action of trespass on the case against the Baltimore and Ohio Railroad Company, in the circuit court of Shenandoah county. The action was brought under the provisions of the act of 1870-71, ch. 29, p. 27, §§ 1, 2, 3 and 4, which are embodied in the Code of 1873, p. 996, ch. 145, §§ 7, 8, 9 and 10, which are as follows:
" 7. Whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured, or if she be a married woman, her husband, either separately, or together with her, to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony, provided that in no case shall the recovery exceed the sum of ten thousand dollars.
8. Every such action shall be brought by and in the name of the personal representative of such deceased person, and within twelve calendar months after his or her death. The jury in any such action may award such damages as to it may seem fair and just, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased.
9. The amount recovered in any such action shall, after the payment of costs and reasonable attorneys' fees, be paid to the wife, husband, parent and child of the deceased, in such proportion as the jury may have directed, or if they have not directed, according to the statute of distributions, and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, parent or child, the amount so received shall be assets in the hands of the personal representative, to be disposed of according to law.
10. Rights of action under this act shall not determine, nor shall such actions, when brought, abate by death of the defendant."
The declaration contains five counts, and is, in substance, as follows:
In the first count, it is charged that the defendant on the 3d day of September, 1874, on the track of a certain railroad running through the corporate limits of the town of Edinburg in said county, and within the corporate limits of said town, then and before the committing of the grievances thereinafter mentioned, in the possession and use of, and operated by said company, for the purpose of running steam locomotive engines and coaches on and over the same, did carelessly and negligently, and with great force and violence run and drive its engines and coaches upon and against said Nathan G. Sherman, there then being, and thereby, then and there, with said engine and coaches, did so greatly wound said Nathan G. Sherman, that by reason thereof he then and there died, and his death was caused by said wrongful act, neglect and default of said railroad company, wherefore the plaintiff, administratrix aforesaid, says she is entitled to recover damages to the amount of $10,000 under the laws of Virginia for such cases made and provided, and therefore she brings suit, & c.
In the second count it is, among other things, charged that the defendant did so carelessly and negligently manage and conduct a train of cars, that by reason thereof the rear car of said train became detached and separated from the other cars of same, and being so detached and separated, ran with great force and violence against said Nathan G. Sherman there then being, and thereby did so greatly wound him that by reason thereof he then and there died, & c.
In the third count it is, among other things, charged that the defendant did so carelessly and negligently manage and conduct a train of cars, that by reason thereof the rear cars of the same became detatched and separated from said train while it was in rapid motion, and being so detached and separated ran with great force and violence against said Nathan G. Sherman, who was walking within the corporate limits of said town of Edinburg on the track of said railroad, in the same direction that said train was running, and who had stepped on said track after said train passed him, and in the interval between said train and said detached rear cars, and thereby with said cars then and there did so greatly wound said Nathan G. Sherman, that by reason thereof he then and there died, & c.
In the fourth and fifth counts it is, among other things, charged that the said injury complained of was done " on the track of a certain railroad in Shenandoah county," instead of " a certain railroad running through the corporate limits of the town of Edinburg in said county," as charged in the other counts.
The defendant demurred to the declaration, and to each count thereof, and the plaintiff joined in the demurrer. The defendant also put in the plea of not guilty, on which the plaintiff joined issue.
On the 25th day of August, 1875, the demurrer being argued, was overruled, and a jury was sworn to try the general issue joined between the parties, but being unable to agree after being together several days, a juror was withdrawn and the cause continued.
On the 8th day of December, 1875, another jury was sworn to try the case, which, after being several days engaged in such trial, at length found a verdict in these words: " We, the jury, find for the plaintiff upon the issues joined, and ascertain the damages of said plaintiff at the sum of $3,000." And on the 20th day of December, 1875, a judgment was rendered in favor of the plaintiff against the defendant for the said sum of $3,000, with legal interest from the 18th day of December, 1875, until paid, and the costs of plaintiff in that behalf expended.
To the said judgment the defendant applied to a judge of this court for a writ of error and supersedeas; which was accordingly awarded.
The first assignment of error in this case is that the court erred in overruling the demurrer to the declaration and each count thereof.
We are of opinion that the circuit court did not err in this respect. Neither is the whole declaration, nor is any count thereof, demurrable. The defendant is sued as a corporation, and there is no affidavit in the case denying such incorporation. In such case it is expressly made unnecessary, by statute, to prove the fact of the incorporation. Code, p. 1094, ch. 167, § 40. Much less is it necessary to aver such fact in the declaration. 3 Robinson's Pract. (new edition), p. 524, and the cases cited. This court as well as the court below will, ex officio, take notice of the fact.
The second assignment of error is that the court erred in allowing the evidence of the witness, Hockman, to go to the jury in reference to the family left by the deceased, N. G. Sherman, after objection.
This assignment of error is founded on the first and second bills of exceptions taken in the case. The first states that upon the trial of the cause, after the jury was sworn to try the issues joined, the plaintiff, before she had completed the examination of her...
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Crawford v. Hite
...It has long been the practice in this State to show the number and ages of the children of the deceased. Baltimore & Ohio R. Co. v. Sherman's Adm'x, 30 Grat. 602, 71 Va. 602, 608. It is clear, we think, that in an action for wrongful death evidence of the physical condition of one or more o......