Alexandria & F. R. Co v. Herndon

• Decision Date: 04 December 1890
• Citation: 87 Va. 193,12 S.E. 289
• Court: Virginia Supreme Court
• Parties: Alexandria & F. R. Co. v. Herndon.

87 Va. 193

12 S.E. 289

Alexandria & F. R. Co.

v.Herndon.

Supreme Court of Appeals of Virginia.

Dec. 4, 1890.

Pleading—Amendments—Carriers—Injuries to Passengers—Evidence—Instructions.

1. Under Code Va. 1887, § 3384, providing that, if at the trial there appears to be any variance between the evidence and pleadings, the court, if it considers that substantial justice will be promoted, may allow the pleadings to be amended on such terms as it may decree reasonable, it is proper to allow a declaration to which a demurrer has been sustained to bo amended at bar by striking out immaterial words, and to refuse to remand the case to rules.

2. In an action for personal injuries, where defendant's theory of the accident is that plaintiff was injured while attempting to alight from its train before it arrived at its usual stopping place, and while it was in motion, and plaintiff's theory is that it was at its usual stopping place, and was stationary, evidence of what had previously been the customary stopping place at that station is admissible.

8. The accident occurred at night, during a snow-storm, while it was intensely dark, and the platforms of the cars were covered with snow. Plaintiff, a woman, was unattended, and was incumbered by heavy clothing and parcels. There was no platform at the station, and defendant's servants, though present, rendered plaintiff no assistance. Held, that it was not error to charge that, if there was no platform or other proper landing place at the stopping place, and defendant's servants rendered plaintiff no assistance in alighting, and if for want of such landing placeand assistance plaintiff was injured without fault on her part, she could recover.

4. It was proper to charge that, if the accident was caused by defendant's failure to light the stopping place, it was liable, where there was evidence that there were no lights.

F. L. Smith, for plaintiff in error.

E. E. Meredith and C. E. Nicol, for defendant in error.

Richardson, J, This is a writ of error to a judgment of the circuit court of the county of Prince William, rendered on the 14th day of May, 1889, in an action of trespass on the case, wherein Irene H. Herndon, an infant under 21 years of age, by her next friend, Kendrick E. Herndon, was plaintiff, and the Alexandria & Fredricksburg Railroad Company was defendant. The object of the suit was to recover damages for injuries alleged to have been inflicted upon the plaintiff through the negligence of the defendant. The facts, as they appear by the certificate of the trial judge, are as follows: The plaintiff was, on the 17th day of December, 1887, a passenger on one of the defendant's trains from Washington City to Quantico, in Virginia. The train left Washington at 4:55 p. m., and reached Quantico 6:05 p. m. of the same evening. As the train approached Quantico, the name of the station was announced by a brakeman, Skid-more, who opened the front door of the rear car, and then turned and opened that of the next car in front, leaving both doors open. He then resumed his position on the intermediate platform, and remained there until Quantico was reached, when he descended to the ground, and stood at the foot of the steps of the front platform of the rear car, with lighted lamp in hand, to assist passengers leaving the car. The conductor was at the front end of the smoking-car, in the discharge of his duty; his presence there being required by the boisterous conduct of three drunken negro passengers. The evidence was conflicting as to the position of the rear brakeman, Evans; the plaintiff testifying that he was sitting, asleep, near the rear end of the rear car, in which she was riding, with his lantern sitting on the floor near him, as she passed by on her way out of the rear car, and the brakeman denying that he was asleep, and protesting that lie did not see her go past him. After the approach to Quantico was announced, the train did not stop until that station was reached, when it did stop, and remained five minutes, —ample time for all passengers wishing to leave the train to do so. After the train stopped at Quantico, the plaintiff, Irene Herndon, was found in the ditch by the side of the railroad track at a point 133 feet north of the depot. The ditch had sloping sides, and was, at its lowest depression, 22 inches from the lower step of the car. The evidence was conflicting as to the position of the train after it stopped, and as to its length. The plaintiff fell from the train, but the evidence was conflicting as to whether the train was in motion or standing at the time she fell; she testifying that it was then standing. She was riding in the rear car when the train approached Quantico and it was from the rear platform or steps of that car that she fell in attempting to leave the train. By the fall she was rendered unconscious, and remained so until she was discovered. She was assisted to the depot, and she walked thence a half mile, to the house of Mr. Bladen, a railroad employe, where she remained and was cared for until the next day, when she was sent for, and removed, in an open sleigh to her father's home in Stafford county, 10 miles distant from Quantico. The cars were in good condition, the rear car, in which the plaintiff was riding, be-iug new. There was a platform at each end of each car, with an iron hand-rail on each side of the steps, which were three in number, each step being 10 inches, except the lower step, which was 22 inches, from the ground. The cars and the rooms in the depot were lighted. Between the depot and the point where the plaintiff was discovered after her fall a street about 16 feet wide crosses the railroad at right angles, and there was a plank walk about 3 or 4 feet wide extending along this street eastwardly towards the Potomac river. The depot is not owned, but is used, by the defendant. There is no platform there, but from the depot along the railroad there is a level sidewalk some 3 or 4 feet wide, extending to the plank sidewalk. A person alighting from either the front or rear platform of the rear car, in the position it was described as occupying by Bladen, the defendant's witness on the occasion in question, after the train became stationary, would alight on level ground, and be able to reach the depot by passing along the sidewalk. But as to the true position of the train, or the rear end of the rear car thereof, the evidence is also conflicting. At the time of the accident, the plaintiff had on an unusual quantity of clothing, and an overcoat or cloak of thick black cloth, reaching to or near her feet, and a small satchel and picture in her hands. By the fall the plaintiff, besides being severely bruised about her face, sustained a fracture of the superior maxillary bone, and the loss of seven teeth, and such impairment of vision that she cannot read or sew at night, or on cloudy days, resulting, in the opinion of her physician, from the shock to her nervous system, and from which, in his opinion, she will never recover. On the occasion of the accident there were no stationary lights at the depot. No assistance was rendered the plaintiff in alighting from the train. The night was intensely dark. There had been a heavy fall of snow during the day, and when the train reached Quantico snow was still falling, but not so rapidly.

The trial judge certified that the foregoing were all the facts proved, but, in addition, also certified the evidence. At the October term, 1888, of said circuit court, the defendant demurred to declaration, and the court sustained the demurrer, but, without remanding the case to rules, allowed the declaration to be amended at bar, by expunging certain immaterial words. But the case was continued until the May term, 1889, when it was tried. At the trial the court, at the instance of theplaintiff, gave to the jury two instructions, to which the defendant objected: "(1) The court instructs the jury that, if they believe from the evidence that at the time of the plaintiff's being injured there was no platform or other proper landing place at the train's stopping place at Quantico, and the defendant's servants did not assist the plaintiff to alight, and, for want of such platform or landing place and assistance in alighting the plaintiff was injured, without fault on her part, then the jury must find for the plaintiff. (2) The court further instructs the jury that, if they believe from the evidence the night on which the plaintiff was injured was intensely dark, and the vision of the plaintiff was further obstructed by a fierce snow-storm that was raging at the time, and that the defendant failed to light the station or stopping place at Quantico, and that, in consequence of the defendant's failure to so light the station or stopping place at Quaiitico, the plaintiff, in attempting to alight from defendant's train, fell and was injured, without fault on her part, then the jury must find for the plaintiff. " At the time, also, the plaintiff, having introduced evidence tending to prove that she was, on the 17th day of December, 1887, a passenger on a train of the defendant company, to be transported from Washington city to Quantico, and that she had sustained injury at the last-named place owing to the neglect and default of the defendant, offered to prove the place at which it was customary for the defendant to stop its trains before the accident in question, to which the defendant objected; but the court overruled the objection, and allowed the evidence to be introduced. The jury found for the plaintiff, and assessed her damages at $5,000; whereupon the defendant moved the court to set aside the verdict as contrary to the law and the evidence, and to grant a new trial; but the court refused the motion, and gave judgment according to the finding of the jury, and the defendant excepted to this ruling, as it had already done to the previous rulings referred to. The case is here on writ of error and supersedea...