Chesapeake & O. Ry. Co v. Rogers' Adm'x

• Decision Date: 12 June 1902
• Citation: Chesapeake & O. Ry. Co v. Rogers' Adm'x, 41 S.E. 732, 100 Va. 324 (1902)
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. ROGERS' ADM'X.

41 S.E. 732

100 Va. 324

CHESAPEAKE & O. RY. CO.

v.ROGERS' ADM'X.

Supreme Court of Appeals of Virginia.

June 12, 1902.

RAILROADS—PERSONS ON TRACK—CARE REQUIRED—EVIDENCE—INSTRUCTIONS.

1. A person walking over a railroad bridge cannot rely on signals which are for the use of the employes of the company in running its trains, and not for the benefit of the public.

2. Error in admitting incompetent evidence is not cured by giving an instruction showing that it is not relevant to the ease, where the effect is to mislead the jury to the prejudice of a party.

3. Where the evidence showed that many people, including boys, daily used a railroad trestle as a walkway, a statement in an instruction that hundreds of men and children so used it is not such a departure from the facts as to operate to the prejudice of a party.

4. It is the duty of a person walking on a railroad track to keep a constant lookout for approaching trains.

5. Where a railroad track has been in constant use as a walkway for the public for a considerable period of time, and this use is well known to the railroad company and its employes, it is the duty of the company to use reasonable care to discover and to avoid injuring persons, whether trespassers or licensees, whom it may reasonably expect to be on the track at that point.

6. It is error to give an instruction based upon a fact that there is no evidence tending to prove.

Error to circuit court of city of Richmond.

Action by the widow and administratrix of Thomas W. Rogers, deceased, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

H. T. Wickham and H. Taylor, Jr., for plaintiff in error.

Sands & Sands, for defendant in error.

HARRISON, J. This action was brought by the widow and administratrix of Thomas W. Rogers, deceased, against the Chesapeake & Ohio Railway Company to recover damages for the alleged negligent killing of the plaintiff's intestate while crossing a certain bridge or trestle of the defendant company, situated a short distance below the city of Richmond.

It appears that Thomas W. Rogers was employed by the Virginia Carolina Chemical Company, and that in going to and from his work he, with others working in that vicinity, but living on Church Hill, in the city of Richmond, was accustomed, morning and evening, to pass over the bridge or trestle of the defendant company, which extends from Nicholson street to Church Hill, a distance of about 1, 300 feet and varies in height, being some 25 or 30 feet from the ground at the highest point This elevated track is supported by bents about 12 feet apart, and at each bent there is what is called a "cap sill, " which extends out on both sides of the structure between 2 and 3 feet. There is no plank or walkway on any part of this structure; nothing but the ties, a few inches apart, on which a person can walk. At each end of this trestle is a warning board placed, with the following large conspicuous letters thereon: "Caution. Keep Off the Bridge." These warning boards are so placed as to be plainly in view of every person who approaches the structure with the intention of crossing. Below this structure, and close beside it, there is a lower trestle, which comes from the gas house on an ascending grade to a point east of Nicholson street, where this lower track joins the upper one. Near the Fulton end of the bridge there are signals placed, which control the running of trains over these trestles. These signals are for the safe running of the trains, and not for the information of the public, and are worked from a tower several squares distant, and have to be changed back and forth as circumstances may require. On the night of January 31, 1901, between the hours of 8:30 and 9 o'clock p. m., Rogers met his death. He had been engaged at the chemical works several hours overtime, and was on his way home with a companion. The engine which ran over and killed Rogers and his companion was going in the same direction they were, and was running with the tender in front. The point where the men were run over is about 360 feet from Gillies' creek. There was also on the trestle, at or near Gillies' creek, a colored man, going in the same direction as Rogers. As the engine approached, this colored man got out on a cap sill, and thus saved himself. These cap sills appear from the evidence to be places of safety, under such circumstances, and available to persons situated as Rogers was. It appears that when the plaintiff's intestate approached the upper trestle, over which he was about to cross, there was exhibited at that point a stop signal, which indicated that over the lower trestle a train was expected, and that trains over the upper trestle were blocked; that a few minutes after Rogers started over the upper trestle the signal was changed from the lower to the upper trestle, giving the right of way to trains over the latter; and that almost immediately the engine and tender came at a rapid speed over the upper trestle. Itappears that the night of the accident was unusually clear and bright; that it was possible to see a long distance. The fact is established by the evidence that, notwithstanding the dangerous character of this structure as a walkway, and the conspicuous warning constantly" displayed cautioning persons to keep off the bridge, it had been constantly used for some years by numerous persons working at the chemical works and in that vicinity, and that this habitual use of the trestle as a walkway was well known to the defendant company. These are the salient facts which the evidence tends to prove.

The trial in the circuit court resulted in a verdict of $4,000 for the plaintiff, which the court declined to set aside, and we are asked to review and reverse that judgment

The first error assigned is to the action of the court in admitting as evidence the following question and answer thereto by a witness introduced on behalf of the plaintiff:

"State whether or not you know that Mr. Rogers knew or was informed about the signals at that place?" to which question the witness made the following answer: "I think he did know, because I have heard him (we have talked as we went over about the different signals) say that track had the signal, or this car had the signal, and we would have safety in going over. I think he did know about it."

This evidence was not pertinent, and should have been excluded. Its admission was calculated to mislead the jury, and make the impression upon their minds that, if Rogers knew, when he went on the trestle, that the signal was set to prevent trains from going thereon, he might rely on this fact as a safeguard while crossing the bridge. The signals were not for the benefit of the public, but were intended to secure the safety of persons and property on the trains of the defendant, and had to be changed as often as it became necessary to accomplish those purposes. In the discharge of this primary duty to those on its trains the defendant could not be delayed in its use of the signals by the consideration that some one wrongfully on its track might be thereby misled.

The error in admitting this evidence was not cured by the subsequent instruction telling the jury that, if they believed the signals were for the use and guidance of the employes of the company, and not for the benefit of the public, then Rogers could not rely on them. The action of the court in refusing to strike out this impertinent evidence, and at the same time giving the instruction mentioned, was calculated to confuse the jury, and mislead them to the prejudice of the defendant.

The plaintiff asked for five instructions, which were given. The defendant asked for six instructions, three of which were refused, two modified and given, and one given as asked. The action of the court in giving the five instructions for the plaintiff and in refusing the instructions as asked by the defendant is assigned as error.

Instructions 1, 2, and 4 for the plaintiff are as follows:

"No. 1. The court instructs the jury that if they believe from the evidence that the defendant company knew that its right of way on the trestle in the declaration mentioned, at the point where T. W. Rogers was killed, was constantly used as a footway by hundreds of men and children passing over it daily and at all hours, its servants were charged with notice that it was so used; and, whether the plaintiff's intestate so using it was a trespasser or licensee, the railroad company could not, without fault, neglect to keep a reasonable lookout for persons upon the trestle; and if the jury further believe from the evidence that said Rogers was so passing over said trestle, as charged in the declaration, that then the court further instructs the jury that it was the duty of the servants of the defendant company to use ordinary care in keeping a lookout to discover persons upon the trestle; and if the jury further...