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

• Decision Date: 03 October 1878
• Citation: 71 Va. 805
• Court: Virginia Supreme Court
• Parties: BALT. & OHIO R. R. CO. v. WHITTINGTON'S adm'r.

71 Va. 805

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

Supreme Court of Appeals of Virginia.

October 3, 1878

1. In an action for damages occasioned by the negligence or misconduct of the defendant, it is not necessary for the plaintiff to allege in his declaration or to prove the existence of due care and caution on his part to entitle him to recover. If the defendant relies upon contributory negligence of the plaintiff to defeat the action, he must prove it, unless the fact is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the circumstances.

2. In an action for damages against a railroad company, a count in the declaration, after setting out that the defendant was working a railroad in the county, with engines and cars for carrying passengers and freight, alleged that on a day named " the defendants conducted themselves so carelessly negligently and unskilfully in the operation of their said business as to inflict upon W (plaintiff's intestate) severe bodily injuries, by reason whereof he did, on the 28th of June, die." The count is defective in not stating where the deceased was or how he was injured.

3. Where issue has been joined on the plea of the general issue the court may refuse to allow the defendant to file special pleas where the facts stated in the pleas may all be given in evidence under the general issue.

4. An employee of a railroad company, who is engaged in mending the track of the road, who, whilst he might get further off stands near enough to the railroad track to be struck by a train if perchance there should be an increase of speed or a change of cars, is guilty of the grossest imprudence and negligence. No man is justified in placing himself near a passing train upon any such idea or presumption, and for an injury sustained by so doing, he or his representative cannot recover.

5. In this case, upon the facts as certified, the deceased was guilty of contributory negligence, and his administrator is not entitled to recover damages from the railroad company for the injuries sustained by the deceased.

6. If the injury sustained by the deceased was the result of a change of the usual train from an accommodation train of moderate rate of travel, to what is known as a lightning express train of a rate of travel from twenty-five to thirty-five miles per hour, and of a change of schedule of the time of running the train passing the point at which the deceased was killed, and said changes were by the chief authority of the railroad company, and the death of the deceased was without fault on his part, and the company had not given notice of said changes to their employees, of whom deceased was one, so as to enable them to avoid the danger: It was the duty of the said company to give such notice, and their failure to do so was negligence of the company, for which it is responsible in damages.

In April, 1875, Thomas M. Miller, administrator of Cornelius Whittington, deceased, instituted an action of trespass on the case in the circuit court of Frederick county against the Baltimore and Ohio Railroad Company to recover damages for having occasioned the death of Whittington. The declaration contained three counts. The first count set out, for that whereas, heretofore, viz: On the 23d of June, 1874, in said county of Frederick, the defendants were occupying and using a certain railway for the purpose of propelling along the same locomotives and cars for the transportation of passengers and freight; that on the said 23d day of June, 1874, the defendants, by their servants, did wrongfully, negligently, and of their own default, throw from their said cars upon and against the said Cornelius a large piece of timber, thereby inflicting upon said Whittington severe injuries, by reason whereof he did, on the 28th June, 1874, die, whereby right of action accrued in pursuance of the act of general assembly in such cases made and provided, to the plaintiff who hath, since the death of said Whittington, qualified as the administrator of his estate, to demand and receive of the defendants for the wrong and injury done as aforesaid, wherefore, & c., laying the damages at $10,000 dollars.

The third count is like the first, except that the thing cast from the cars was described as a heavy piece of wood.

The second count, after following substantially the first count down to the word " freight," proceeds: That on said 23d of June, 1874, the defendants conducted themselves so carelessly, negligently and unskilfully in the operation of their said business as to inflict upon the said Cornelius Whittington severe bodily injuries, by reason whereof he did, on the 28th of June, 1874, die; whereby, & c.

The defendant appeared and demurred to the whole declaration and each count thereof, and pleaded not guilty, and the plaintiff joined in the demurrers and took issue on the plea.

At a subsequent term of the court the court overruled the demurrers, and the defendant then asked to be allowed to file a special plea to each count in the declaration, but the court refused to permit the same to be filed, on the ground that the facts therein contained were covered by the general issue, and for the reason that the attorneys for the plaintiff stated that they were willing to admit that the defendant could, under the general issue, show the facts alleged in said several pleas; and the defendants excepted. The facts set out in the pleas were, that Whittington and Krebs were co-employees of the defendants, and in the same employment; that Krebs was a competent and prudent person, and that the large piece of timber was thrown off the cars by Krebs.

There were numerous exceptions taken by the defendants during the progress of the trial, but it is only necessary to state one of them, which was the third and is as follows: After the retirement of the jury and the close of the argument, the jury returned into court, and in writing asked the court a question in these words: Can the jury, under the second count in the bill, bring in a verdict for damages for plaintiff? To which the court replied that it was for them to determine whether such a verdict should be given upon the evidence, and gave the jury the following instruction: " If the jury believe from the evidence that the death of Whittington was the result of a change of the usual accommodation train of moderate rate of travel, from twenty to thirty-five miles per hour, and of a change of schedule of the time of running the train passing the point at which Whittington was killed, that such changes were by the chief authority of the Baltimore and Ohio Railroad Company, and that the said death was without fault on his part, and that said company had not given notice of said changes to its employees, Whittington being one of them, so as to enable them to avoid the danger, they are instructed that it was the duty of the said railroad company to give such notice, and their failure to do so is the negligence of the said company, for which said company is responsible in damages." And the court permitted the counsel for the defendant to argue to the jury upon the evidence of the case with the instruction given, the plaintiff's counsel having argued in full the questions involved in said instruction before the instruction was given, and before the jury were sent out.

The jury found a verdict in favor of the plaintiff for $3,000, which the defendant moved the court to set aside and direct a new trial of the cause, on the ground that it was contrary to the law and evidence. But the court overruled the motion and rendered a judgment according to the verdict. And thereupon the defendant excepted, and all the facts proved are stated in the bill of exceptions. The view of the facts taken by this court is presented in the opinion of Judge Staples.

Upon the petition of the Baltimore and Ohio Railroad Company, a writ of error and supersedeas was awarded.

Dandridge & Pendleton and H. W. Sheffey, for the appellants.

Holmes Conrad and Tucker & Tucker, for the appellee.

OPINION

STAPLES, J.

The court is of opinion that the circuit court did not err in overruling the demurrers to the first and third counts of the plaintiff's declaration. In an action for damages occasioned by the negligence or misconduct of the defendant, it is not necessary for the plaintiff to allege and prove the existence of due care and caution on his part to entitle him to recover. If the defendant relies upon contributory negligence of the plaintiff to defeat the action he must prove it, unless indeed the fact is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the circumstances. As proof of due care is not a part of plaintiff's case, it is of course not necessary he should aver it in his declaration. Railroad Company v. Gladmon, 15 Wall. U. S. R. 401; Shearman & Redf. on Negligence, § 43, and cases cited.

The court is further of opinion that the circuit court erred in overruling the demurrer to the second count in the declaration. Substantially, the allegation is that the defendants were possessed of certain engines and cars used and employed in carrying passengers and freight along the line of their railway in Frederick county, Va., and that on the 23d of June, 1874, the defendants conducted themselves so negligently and unskilfully in the operation of their said business as to inflict upon the plaintiff's intestate severe bodily injuries, by reason whereof he died. Now whether the plaintiff's intestate was at the time a passenger on the train and received his injuries as such, or whether he was an employee of the company and was injured while engaged in their service, or whether he was a stranger crossing the track of the company's road, or whether ...