Blankenship v. Chesapeake & O. Ry. Co

• Decision Date: 01 April 1897
• Citation: Blankenship v. Chesapeake & O. Ry. Co, 27 S.E. 20, 94 Va. 449 (1897)
• Court: Virginia Supreme Court
• Parties: BLANKENSHIP v. CHESAPEAKE & O. RY. CO.

27 S.E. 20

94 Va. 449

BLANKENSHIP

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of Virginia.

April 1, 1897.

Railroads — Injuries to Persons on Track — Evidence — Negligence — Instructions — Appeal—Assignments of Error—Harmless Error—Witnesses—Examination.

1. Plaintiff might properly ask, on cross-examination, if witness did not remember that at the last trial of the case he did not testify as to a certain fact, where the object was to test the witness recollection as to a material point in the defense.

2. It is harmless error to exclude evidence which is afterwards given by the same witness.

3. It is harmless error to exclude as evidence acts of the general assembly, where the court tells the party he may read them to the jury if he desires.

4. In an action against a railroad company for injuries to a person on its track in the switch yard, an ordinance regulating the running of locomotives at street crossings was irrelevant.

5. In an action against a railroad company for injuries to a boy on the track in a switchyard, it was proper to refuse to charge whether plaintiff was a trespasser or a licensee, where defendant knew that hundreds of people passed over and along its tracks in the yard daily; since it was its duty to exercise reasonable care to discover, and not to injure, persons whom it might reasonably expect to be on such track, whether trespassers or licensees.

6. In an action against a railroad company for injuries, instructions are erroneous which make defendant's liability, in case plaintiff was negligent, depend on the knowledge by defendant's servants of plaintiff's danger, add not on what they might have known if they had exercised such care as the law requires.

7. An assignment of error in refusing to permit plaintiff in error "to read certain authorities to the jury, among them decisions of the supreme court of appeals of Virginia, " is too general.

Error to circuit court of city of Richmond.

Action by Charles P. Blankenship, an infant, by C. T. Blankenship, his father and next friend, against the Chesapeake & Ohio Railway Company, for personal injuries. There was a judgment for defendant, and plaintiff brings error. Reversed.

Edmund Waddill, Jr., L. L. Lewis, and G. J. Hooper, for plaintiff in error.

H. T. Wickham, W. J. Robertson, and H. Taylor, Jr., for defendant in error.

BUCHANAN, J. The plaintiff, who was an infant 10 years of age, was run over by an engine and tender of the defendant company in its yard in the city of Richmond, and for the injuries done him he brought an action by his next friend. Upon a trial of the cause there was a verdict and judgment for the defendant. To that judgment this writ of error was awarded.

The first assignment of error is to the action of the court in refusing to allow one of the witnesses of the defendant to be asked upon cross-examination if he did not remember "that at the last trial of the case he did not state anything about Tommie Brooks coming down the railroad." The object of this question was to test the recollection of the witness as to a material point in the defense set up by the defendant, and was, therefore, a proper question; and, while the court erred in not allowing it to be asked and answered, no prejudice resulted to the plaintiff therefrom, as the witness afterwards, in reply to another question, stated what his recollection was as to his testimony on that point at the former trial.

The next error assigned is to the action of the court in refusing to allow the plaintiff to introduce in evidence certain acts of the general assembly by which the James River & Kanawha Company was incorporated, and by which that company was afterwards authorized to make sale of its property and franchises to the Richmond & Alleghany Railroad Company, to whose rights the defendant succeeded. The bill of exceptions states that the court refused to allow those acts to be introduced in evidence, "holding, however, as said acts were public acts, they could be read by the plaintiff's counsel to the jury, if they so desired, as a part of their evidence."

The bill of exceptions shows on its face that no prejudice could possibly have resulted to the plaintiff from the court's action, and that this assignment of error is wholly without merit.

In the same bill of exceptions it was stated that the court refused to permit the plaintiff to introduce in evidence a certainordinance of the city of Richmond which regulated the running of locomotive engines in that city at street crossings. The injury complained of did not occur at a street crossing, but in the defendant's yard. The ordinance contained nothing that was relevant to the case, and was properly excluded.

The plaintiff offered fifteen instructions and the defendant eight, all of which were refused by the court, and in lieu thereof it gave five of its own. The action of the court in refusing the plaintiff's instructions and in giving its own is assigned as error.

Without attempting any detailed discussion of the numerous instructions offered by the plaintiff and rejected by the court, we will consider the question whether the instructions given by the court correctly stated the law applicable to the case, and properly submitted it to the jury. In order to do so, however, it will be necessary to state briefly what the evidence in the case tended to prove.

The evidence of the plaintiff tends to show: That the plaintiff, a boy a little over 10 years of age, and who lived on High street, near the defendant's yard, went on the day he was injured from home across the railroad tracks to the north bank of an old canal immediately south of the defendant's tracks, where boys were swimming in the canal. That he walked along down the north bank of the canal to the Tredegar bridge, near the east end of the yard. After remaining there some time, he started home through the yard, walking slowly upon the track known as the "long siding"; and after proceeding a short distance he saw an engine behind him, on the same track, approaching. He thereupon got off that track, and went upon what is known as the "main track, " which runs parallel with, and next to, the long siding; and, after running a short distance up that track, to see if he could run as fast as the engine on the long siding, he stopped, and was immediately run over by an engine going in the same direction. That it was running at the rate of from 10 to 15 miles an hour; and gave no warning of its approach, either by sounding the whistle or ringing the bell. That the men on the engine were engaged in conversation, and not keeping a lookout when the plaintiff was injured. That immediately east of the Tredegar bridge—the point to which the plaintiff went—there is a very sharp curve around the foot of Gamble's hill, which prevents a person in the yard between that bridge and the foot of High street from seeing an approaching train but a few feet east of the Tredegar bridge.

The evidence of the defendant tended to show that while it was true that many persons were constantly passing through the yard with the defendant's knowledge, yet objection to It had occasionally been made, and that for many years a warning written on a board In large letters had been placed on a post at the Tredegar bridge, forbidding persons from going upon the property of the defendant under penalty of the law, and that the plaintiff and others had...