Chesapeake & O. Ry. Co v. Clowes

• Decision Date: 11 June 1896
• Citation: 93 Va. 189,24 S.E. 833
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. CLOWES.

24 S.E. 833

93 Va. 189

CHESAPEAKE & O. RY. CO.

v.CLOWES.

Supreme Court of Appeals of Virginia.

June 11, 1896.

Carriers—Accident to Passenger—Negligence per Se—Instructions.

1. It is not negligence per se for a passenger on a rapidly moving train to attempt to pass out of one car into another, in search of a seat 2. In an action for injuries to a passenger thrown from a train by a lurch caused by striking a curve, an instruction that defendant is liable if the train was run over the curve "at an unusually rapid rate of speed" is erroneous, since "unusually rapid" is not equivalent to "dangerous."

Error to circuit court of city of Richmond; B. R. Wellford, Jr., Judge.

Trespass on the case by E. H. Clowes against the Chesapeake & Ohio Railway Company. Prom a judgment in favor of plaintiff, defendant brings error. Reversed.

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

Meredith & Cocke and J. H. Webb Peploe, for defendant in error.

KEITH, P. This is an action of trespass on the case, brought in the circuit court of the city of Richmond, by E. H. Clowes against the Chesapeake & Ohio Railway Company. The declaration sets out that on the 21st of April, 1893, the plaintiff became a passenger upon the train of the defendant company from Richmond to Old Point; that it was an excursion train, and that upon the return trip they left Old Point in the evening of that day, and when within about 200 yards of Newport News (a station on said railway), and within the yard limits, there was a switch called a "Y, " by which trains running from Old Point could be shifted or diverted, at the option of the defendant company, either to Richmond or Newport News; that, at or near this point in the track, the railroad was constructed in a "severe and sharp curve, and that passing over this curve would be dangerous for trains moving over at a greater rate of speed than 17 miles per hour, and of which the defendant had notice; and the plaintiff further says that, having entered into one of the cars of said train, he endeavored to find a seat, but that the car was so crowded that he could not be accommodated, and thereupon he undertook to pass carefully and cautiously into another car, when, the train striking the curve just described, and moving at an improper and dangerous rate of speed, the plaintiff was, without fault on his part, thrown with great force and violence from the platform to the ground, and received the injuries for which he sues." The second count of the declaration sets out substantially the same facts, and to this declaration, and to each count, there was a demurrer. The demurrer was overruled, and in this we do not think there was any error.

A passenger upon a railroad train, when he has paid his fare, is entitled to a seat; and he has the right to pass through the train in search of one, provided he does so carefully and cautiously. In Jammison v. Railway Co. (decided at the November term of this court) 23 S. E. 758, it is said: "Railroad companies owe a high degree of duty to their passengers. They must do all for their safety that human skill and foresight may suggest, and are responsible for any, even the slightest, neglect; but that the passenger may hold the company to this high degree of responsibility, it is incumbent upon him to occupy the position upon the train assigned to passengers, and if he voluntarily assumes a position of peril, and injury results from it, he cannot recover." In that case the plaintiff was a woman, who, having been carried beyond the station at which she intended to get off, passed out upon the platform of a rapidly moving train, incumbered with bundles, which incapacitated her for self-protection, and it was held that she was guilty of such contributory negligence as prevented her from recovering damages for the injuries which she sustained. But the case under consideration is altogether different. Here the plaintiff had not been assigned to a seat to which he was entitled, and we cannot say, as matter of law, that a passenger thus situated, who, with due care and caution, undertakes to pass from one car to another, in search of a seat, and is thrown from the train, is guilty of such negligence as must defeat his action. The case is stronger where the plaintiff acts under the advice or suggestion or at the invitation of the defendant or its agent, but this will not justify the plaintiff in taking an "unmistakably improper risk." 1 Shear. & R. Neg. (4th Ed.) 691; Patt. Ry. Acc. Law, p. 286. "Passengers are not to be deemed guilty of negligence for standing on the platform of cars in motion when there are no vacant seats for them within the cars." Willis v. Railroad Co., 34 N. Y. 670. In that case the cars were crowded, and the plaintiff, who had paid for a seat, being unable to procure one, was standing on the platform. He had been standing in the car, but stepped out on the platform, to permit three ladies to pass, who were also in search of seats. The track was in good order, but obstructed by two pieces of timber lying upon it. The train was running at a high rate of speed, and the court left it to the jury to say whether it was an "undue rate of speed"; whether it was negligence in the defendant that the obstructions were upon the track, or the train so run as to be derailed by them. The judgment was for the plaintiff. It is a fact to be noted that in that case one ground of defense was that there were vacant seats in the rear car, which the plaintiff should have sought and occupied. In the case of Werle v. Railroad Co., 98 N. Y. 650, it is held that the "fact that a passenger, failing to find a seat, and having none pointed out to him by any employe of the company, takes a position on the platform of a car, where other passengers are riding, and without objection from any employe, and is thrown from the car by a sudden lurch given it by the great and increased speed with which the train is run when turning a curve, does not, as matter of law, establish contributory negligence." The evidence tended to show an un-usual and dangerous movement of the train; and the ease decides that a passenger who purchases a ticket is entitled to a seat, and if, being unable to find one, he takes his position upon the platform, and is thrown from the train while passing around a curve at an unusual and dangerous rate of speed, he is entitled to recover damages for the injury. There is nothing to the contrary of this in Stewart v. Railroad Co., 146 Mass. 605, 16 N. E. 466, where it was held that, in "going from one car to another of a rapidly moving train merely for his own convenience, the plaintiff took on himself the risk of all accidents not arising from any negligence of the defendant." Certainly, the accident must be attributable to some neglect of duty on the part of the defendant, or to the performance of its duty in a negligent manner, as the proximate cause of the injury, to entitle the plaintiff to recover.

Upon the trial of the case under investigation, there was evidence that the plaintiff, upon taking the train at Old Point, upon the return to Richmond, found the car so crowded that he was unable to procure a seat; that he sat upon the arm of the...