Chesapeake & O. Ry. Co v. Farrow's Adm'x

• Decision Date: 22 November 1906
• Citation: 55 S.E. 569,106 Va. 137
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. FARROW'S ADM'X.

55 S.E. 569

106 Va. 137

CHESAPEAKE & O. RY. CO.

v.FARROW'S ADM'X.

Supreme Court of Appeals of Virginia.

Nov. 22, 1906.

1. Negligence—Degree op Care.

The care required to prevent the infliction of Injury is always proportioned to the probability that exists that an injury will be done under circumstances which are known to exist, or, from past experience, may be reasonably expected to exist in a particular case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Negligence, § 5.]

2. Railroads — Injuries to Trespassers — Care Required.

A railroad company is not required to anticipate and make provision for trespassers upon its tracks, but after it has discovered a trespasser upon its tracks it must exercise reasonable care to avoid injuring him, and, if his danger be obvious and imminent, it must use all the means which are available for his protection which are consistent with its higher duties to the passengers.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1238.]

3. Same—Licensees.

Where licensees are such by the mere tolerance and acquiescence of a railroad company, or who have become such by repeated acts of trespass against the will of the railroad company, and in which the company has been compelled to acquiesce because of its inability toprevent, the company does not owe them the duty of prevision.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1236.]

4. Same.

In an action for injury resulting in the death of plaintiff's intestate, walking along defendant's track at a place where it was used by pedestrians, evidence held to show that defendant was not guilty of negligence.

5. Same—Contributory Negligence.

A licensee walking along a railroad track is charged with the duty to care for his own safety and with the knowledge that the track is frequently used for the passage of trains and the shifting of cars, and he must be considered as charged with knowledge that the usual method of shifting cars at such point was by making flying switches, which method had been in constant use for many years.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1286, 1294.]

6. Same.

Where a licensee on a railroad track was killed by a moving car, the doctrine of the last clear chance had no application; it appearing that defendant's servant on the train did not see deceased, being engaged in the performance of a necessary duty which he could not neglect.

[Ed. Note.—For eases in point, see Cent. Dig. vol. 41, Railroads, §§ 1324, 1325.]

Error to Corporation Court of Buena Vista.

Action by the administratrix of Stuart Farrow against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

R. L. Parrish, for plaintiff in error.

Hugh A. White, for defendant in error.

KEITH, P. This action grows out of the death of Stuart Farrow under the following circumstances: The regular local freight train on the branch line of the Chesapeake & Ohio Railway, between Glasgow and Lexington, Va., was engaged at Buena Vista, a station on that road, in shifting the cars that composed the train when it arrived at Buena Vista. In doing this work it became necessary to move four empty box cars from the paper mill over what is known as the "transfer" track, between the Chesapeake & Ohio and the Norfolk & Western Railroads. For this purpose the engine, to which one car was attached, moved up to the paper mill and was there coupled to the four box cars that were to be moved. This engine with the attached cars then backed out: the train consisting at the time of one box car, then the engine, and then the four box cars, towards which the engine was headed. From the paper mil] to the point of the accident which subsequently occurred it is upgrade, and from that point to the station of Buena Vista, in which direction the train was moving, there is a downgrade. When the train thus made up had attained considerable speed, one of the brakemen. who was stationed on the pilot of the engine, cut loose the four empty box cars attached to the front of the engine, and the engine ran on along the main line past the transfer switch, the idea being that the impetus which the four following cars had attained, aided by the downgrade on which they had to run, would carry them on into the transfer track after they had been detached from the engine; thus making what is known as a "running, " "flying, " or "gravity" switch. The evidence shows that this was the usual and only method employed in making the necessary transfer of cars at this station. The tracks and switches along which this train passed after it left the paper mill are all within the corporate limits of the city of Buena Vista, but neither the main track nor the switches, as far as the facts of this case are concerned, occupy or are crossed by the streets of the city of Buena Vista; but it does appear that the right of way and tracks of the railway company at the point of the accident were constantly used by pedestrians.

It seems that Stuart Farrow was upon the track; that he stepped off in order to avoid the engine which was approaching him from the rear; that, as soon as the engine passed, he stepped back upon the track, and was almost immediately—after he had taken two steps, according to one eyewitness, and after he had taken eight or ten steps according to another eyewitness—run over by the box cars which had been detached from the engine, and received injuries from which lie died. Upon the front end of the box car, next to and following the engine, the conductor, a careful and prudent officer of the Chesapeake & Ohio Railway, was stationed, on the lookout to prevent accidents. A cow got upon the track just in front of the engine and car, and the engineer gave the alarm signal, thereupon the conductor ran to the rear of the car upon which he was stationed in order to apply the brake in obedience to the alarm signal, and just at that moment Stuart Farrow, the engine having passed him, stepped upon the track and received the injury of which he died.

His administratrix brought suit, and the jury upon the demurrer to the evidence rendered a verdict in her favor, upon which the court entered the judgment to which the Chesapeake & Ohio Railway Company applied for and obtained a writ of error.

"Negligence, constituting a cause of civil action, is such an omission, by a responsible person, to use that degree of care, diligence, and skill which it was his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended damage to the latter." Shear. & Red. on Neg. (5th Ed.) § 3.

The degree of care and skill required is influenced and determined by the conditions existing at...