Bragg's Adm'x v. Norfolk & W.Ry. Co

• Decision Date: 01 February 1910
• Citation: 110 Va. 867,67 S.E. 593
• Court: Virginia Supreme Court
• Parties: BRAGG'S ADM'X v. NORFOLK & W.RY. CO.

67 S.E. 593

110 Va. 867

BRAGG'S ADM'X

v.NORFOLK & W.RY. CO.

Supreme Court of Appeals of Virginia.

March.21, 1910.

1. Appeal and Error (§ 837^*)—Scope of Review—Demubber.

Where a question involved upon writ of error arises on demurrer to the declaration, the court is only concerned with the averments of the declaration.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 837.*]

2. Carriers (§ 369*)—Ejectment from Train —Drunken Passenger—Proximate Cause.

Where plaintiff's decedent, while in an intoxicated and irresponsible condition, had been ejected from a train at the second station beyond his destination, and was found the next day in an unconscious condition, and died on the same day, the failure to put him off at his point of destination, or at the next station reached by the train, was not the proximate cause of his death.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 369.*]

3. Carriers (§ 247*)—Riding on Pass—Intoxicated Person—Passenger.

Where plaintiff's decedent, while riding on a pass, remained on the train, after he reached his destination, in an intoxicated and irresponsible condition, whether his remaining on the train was the result of defendant's negligence or of his mental and physical condition, he was entitled to be treated as a passenger.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 247.*]

4. Carriers (§§ 356, 366*)—Passenger Carried Beyond Destination — Carrier's Rights and Duties—Drunken Passenger.

Where plaintiff's decedent, while in an intoxicated and irresponsible condition, had been carried past his point of destination, the carrier had the right to put him off the train, though, if it were negligent in carrying him by his station, it was its duty to return him to that point; but, if it knew of his condition, it should not exercise its lawful right of removal at a time or place, or under circumstances, where he would be exposed to great hazard.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1430, 1454; Dec. Dig. §§ 350, 366.*]

5. Negligence (§ 4*)—Reasonable Regard for Human Life—Duty of Person Exercising Rights—Performance of Duties.

All persons in the exercise of their rights, or in the performance of their duties, should act with a reasonable regard for the preservation of human life and the prevention of serious bodily harm, or the infliction of unnecessary injury upon others, and a person is generally held responsible for the manner in which his rights are exercised or his duties performed.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 6; Dec. Dig. § 4.*]

6. Carriers (§ 380^2-*) — Pleading — Declaration—Sufficiency.

A count in a declaration, which failed to allege facts either as to the weather or character of the grounds in and about a station, or that it was severely cold, or that the ground was covered with snow, or that the character of the place was such as made it dangerous, held not to state a cause of action for ejectment from a train at an improper place.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 380.*]

7. Carriers (§ 380*) — Pleading — Declaration—Sufficiency.

A count in a declaration, stating that intestate was ejected from a train when night was rapidly approaching, the climatic conditions severe, the ground covered with 15 inches of snow, and that the conductor and other servants of defendant, on account of intestate's condition and surroundings, attempted to place him in care of a station agent, who, knowing decedent's condition, neglected to care for him, but permitted and actually saw him wander off alone down the railroad track, held to state a cause of action for ejectment from a train at an improper place.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 380.*]

Appeal from Circuit Court, Rockbridge County.

Action by Bragg's administratrix against the Norfolk & Western Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

C. S. McNulty, H. S. Rucker, and Glasgow & White, for appellant.

M. McCormick and E. M. Pendleton, for appellee.

BUCHANAN, J. This is an action to recover damages from the Norfolk & Western Railway Company for negligently causing, as is alleged, the death of the plaintiff's decedent.

The trial court held, upon demurrer, that neither of the two counts of the plaintiff's amended declaration stated a cause of action, and entered a final judgment in favor of the defendant company.

As the question involved in this writ of error arises on demurrer, we are only concerned with the averments of the declaration. It is averred in substance in the first count ! that the plaintiff's intestate, who was the j telegraph operator of the defendant at Loch laird, a station near Buena Vista, on the line of its road running from the city of Roanoke to Hagerstown, Md., on the 24th day of December, 1908, went to his home in Roanoke city on a trip pass issued to him by the defendant to travel from Buena Vista to Roanoke and return; that he remained at his home on that day until near 1:30 o'clock in the evening, when he boarded a passenger train of the defendant to return to his place of work; that when he entered the train he was more or less under the influence of some intoxicating liquor, or not in his right mind from other causes; that before the train reached Benua Vista he went to sleep, or for some other cause became mentally irrespon sible, and the defendant, through its negligence, failed to arouse him at that station, or aid him in leaving the train, but carried him on to the second station beyond his point of destination, where he was forcibly ejected from the train by the defendant when he was in a drunken and irresponsible condition, or had lost his reason and was crazy from causes unknown to the plaintiff, and when he was, on account of his said condition, unable to take care of and protect himself against the natural, inevitable, and immediate dangers to which he was exposed from being ejected at a sparsely settled station where he was not familiar with his surroundings; that when he was ejected at that place, notwithstanding his said condition and surroundings, in violation of its duty to him, the defendant failed to put him in a place of safety, or in charge of some one who would look after and guard him against the said dangers, when he was utterly incapable mentally and physically of protecting himself; that as the direct and natural result of the said negligence the plaintiff's intestate, being physically and mentally unable to care for and protect himself, wandered aimlessly in the cold, snow, and darkness along and on the railroad track of the defendant until, overcome by the cold and exposure, he fell beside the track, where he was found the next morning in an unconscious condition, and died that day. It is further averred that the said irresponsible condition, both mentally and physically, of the plaintiff's intestate at the time he was ejected, and while he was on the train, was known to the defendant.

The second count is substantially the same as the first, except that it contains the additional averments that when the plaintiffs intestate was ejected from the train night was rapidly approaching, and the climatic conditions were severe, the ground being covered with about 15 inches of snow; that the conductor and other agents of the defendant attempted, when the plaintiffs intestate was ejected, to place him under the care and protection of' the station agent, in order that he might protect the decedent from the dangers into which he would naturally be expected to fall in his then said...