Baltimore & O R. Co v. Few's Ex'r

• Decision Date: 03 December 1896
• Citation: 94 Va. 82,26 S.E. 406
• Court: Virginia Supreme Court
• Parties: BALTIMORE & O R. CO. v. FEW'S EX'R.

26 S.E. 406

94 Va. 82

BALTIMORE & O R. CO.

v.FEW'S EX'R.

Supreme Court of Appeals of Virginia.

Dec. 3, 1896.

Trial — Instructions — Railroads — Injury at Crossing—Contributory Negligence.

1. An instruction which might be proper under a certain state of facts is misleading and erroneous when not applicable to the facts shown by the evidence in the case in which it is given.

2. The rule is that a railroad company is not liable for the killing by a train of a person who negligently went on the track in front of the train, when the employés in charge exercised proper care and diligence to stop the train after they saw, or should have seen, his peril; and an instruction making exemption from liability dependent on whether or not it was then "impossible" to stop the train states an incorrect rule, and is erroneous.

3. Where plaintiff's testator, who was able to both see and hear, walked onto a railroad crossing immediately in front of a rapidly moving train, which could be seen for 1, 000 feet before it reached the crossing, and was struck and killed, and the evidence failed to show any defect in the crossing which contributed to the injury, a verdict for the plaintiff is not warranted.

Appeal from circuit court, Shenandoah county; I. W. Harrison, Judge.

Action by the executor of William H. Few against the Baltimore & Ohio Railroad Company to recover for the killing of his testator. Judgment for plaintiff, and defendant appeals. Reversed.

Williams & Bro., and J. Bumgardner, for appellant.

W. R. Alexander and Walton & Walton, for appellee.

CARDWELL, J. This is an action of trespass on the case, brought in the circuit court of Shenandoah county by Few's executor against the Baltimore & Ohio Railroad Company to recover damages for the death of the plaintiff's testator, caused, as alleged, by the negligence of the defendant company. Few was killed by one of the defendant company's freight trains on the morning of Oc-tober 19, 1892, while attempting to drive his cow across the defendant company's road at North street crossing, in the town of Woodstock. At the first trial of the case the declaration contained an allegation that the crossing was defective, and that, by reason of its defective condition, Few lost his life; but the verdict of the jury was for the plaintiff, and damages assessed at $1,500, which verdict the court below set aside, on the motion of the defendant company, as contrary to the law and the evidence, whereupon the plaintiff twice amended his declaration, alleging that the proximate and immediate cause of Few's death was the defective condition of North street crossing, which it was the duty of the defendant company to keep in good and safe condition; and a second trial of the case resulted also in a verdict for the plaintiff, assessing damages at $2,250. This verdict the court refused to set aside on the motion of the defendant company, and a writ of error was awarded by this court. At the trial the defendant company took four bills of exceptions to the rulings of the court.

We will consider first the exception to the introduction in evidence by the plaintiff of an ordinance of the town of Woodstock in relation to the speed of trains running through the town, and a copy of a notice of the mayor, of September 29, 1892, to the supervisor of the Valley Division of the defendant company's road, calling his attention to the ordinance, especially in view of the then-approaching fair, to be held at Woodstock October, 4, 5, 6, and 7, 1892. The contention is that the ordinance is invalid; that the council of Woodstock had no authority in law to make such an ordinance. We deem it unnecessary, however, to pass upon the validity of the ordinance, as the evidence is wholly inadequate to show that its violation was the proximate cause of the accident resulting in the death of Few. The introduction of this evidence could not, therefore, have been at all damaging to the defendant company, especially in view of instruction No. 5 as given by the court for the plaintiff.

At the conclusion of the testimony in the case, the court, at the instance of the plaintiff, gave to the jury 11 instructions, to all of which the defendant company objected, and, at the instance of the defendant company, gave 5 instructions, to which the plaintiff made no objection, so far as the record discloses. The instructions asked for by the plaintiff and given, when read in connection with the instructions given for the defendant company, submitted, we think, the issues fairly and rightly to the jury, with the exception of the plaintiff's instruction No. 3, which is as follows: "The court instructs the jury that if they believe from the evidence that W. H. Few, through the negligence of the defendant, was in terror of an emergency for which he was not responsible, and for which the defendant was, —he acted wildly and negligently, and lost his life in consequence, —said negligent conduct, under such circumstances, is not contributory negligence. In such case the negligent act of the defendant is the proximate cause of the injury." There may be a state of facts under which this instruction, as given, would be good law; but, upon the evidence set out in this record, its tendency was to mislead the jury. There is not the slightest evidence to sustain a conclusion that the plaintiff's testator, through the negligence of the defendant company, was placed "in terror of an emergency, " and by reason thereof lost his life; and this instruction should not, therefore, have been given.

After the instructions asked for by both the plaintiff and the defendant company had been given, and the jury had viewed the grounds and surroundings where the accident occurred, the defendant company presented the following instruction: "The court further instructs that it was the duty of W. H. Few, in approaching the crossing on the 19th of October, 1892, before going upon the track, or attempting to cross it, to use his eyes and ears for the purpose of avoiding danger; and if...