Chesapeake & O. Ry. Co v. Saunders' Adm'r

• Decision Date: 12 November 1914
• Citation: 116 Va. 826,83 S.E. 374
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. SAUNDERS' ADM'R.

83 S.E. 374

116 Va. 826

CHESAPEAKE & O. RY. CO.

v.SAUNDERS' ADM'R.

Supreme Court of Appeals of Virginia.

Nov. 12, 1914.

1. Railroads (§ 390*)—Injuries to Licensees—Concurring Negligence.

Where a young man, in full possession of his faculties, stepped onto a railroad track at a place where there was a public pathway, without looking to see if a train was approaching, walked down the track without looking behind him, and was struck and killed by a train which had been in plain sight for a considerable distance, but whose crew were negligent in not discovering the danger, there was mutual and concurring negligence, continuing up to the moment of the accident.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.*]

2. Railroads (§ 401*) — Injuries to Licensees—Instructions—Contributory Negligence.

In an action for the death of a licensee, killed upon a railroad track, where there is evidence to support the railroad's defense of contributory negligence, an instruction directing a verdict upon a finding of negligence by the rail-

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexesroad, without referring to contributory negligence, is erroneous.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.*]

3. Railroads (§ 358*)—Injuries to Licensees — Liability — Contributory Negligence.

A railroad is not liable for negligence in failing to discover the presence of a licensee upon its tracks, or in not taking precautions to avoid striking him, where the licensee was a grown man, and was himself negligent in not looking for the train.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1236, 1237; Dec. Dig. § 358.*]

4. Railroads (§ 401*)—Injuries to Persons on Track—Requested Instructions—Contributory Negligence.

In an action for the killing of a licensee on a railroad track, charges requested by the railroad that the track was itself a warning of danger, and that the failure of a person to listen and look in both directions before going upon the track was negligence, were correct, and should have been given, if supported by the evidence.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.*]

5. Railroads (§ 369*)—Injuries to Persons on Track—Duty to Licensee.

A railroad company owes no duty to a mere licensee to keep a lookout on the front car of its train, to run its train at a slow speed, or to blow the whistle or ring the bell.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1259-1262; Dec. Dig. § 369.*]

Error to Corporation Court of Staunton.

Action by the administrator of Roddy Saunders against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

J. M. Perry, of Staunton, for plaintiff in error.

Carter Braxton and Timberlake & Nelson, all of Staunton, for defendant in error.

HARRISON, J. This action was brought by the administrator of Roddy Saunders to recover of the defendant company $5,000 damages for its alleged negligent killing of his intestate. The trial resulted in a verdict and judgment in favor of the plaintiff for $1,357.14, which we are asked to review and reverse.

The salient facts of the case are few and very clearly established. On the 16th of February last, in the daytime, the deceased, an active, strong youth 18 years of age, in company with his younger brother, who was 16 years old, had been picking up coal along the track of the defendant east of the Staunton station and were returning, walking on the company's main, line within the eastern limits of the city. From the point where they took the track they had walked west about 450 feet when a train coming from the east ran up behind them. The younger brother heard the train and stepped out of the way, while the deceased, who was some 8 feet in advance of his brother, appeared to be oblivious of his danger, and failed to leave the track in time to save himself, and was killed. The fact is established that the deceased did not look or listen for the approach of a train when he got upon the track, nor did he once turn his head and look to the east, to see if a train was coming, during the time he was walking to the point where he was struck. The track from the point of the accident east, the direction from which the train came, is practically straight, and the view unobstructed, for a distance of more than 800 feet, so that, if the duty of looking and listening had been observed, the deceased could have easily heard and seen the approaching train.

The deceased bore the relation of licensee to the railroad company; the track where he was killed being much used by the public as a walkway. Viewing the case from the standpoint of a demurrer to the evidence, as required, it must be assumed that the employe's of the defendant were guilty of negligence in failing to exercise reasonable care to discover the presence of the deceased on the track. There was, however, nothing in the circumstances attending the situation to bring to the knowledge of those in charge of the train any notice that the deceased was paying no heed to his danger and would take no step to secure his own safety. These facts present a plain case of mutual and concurring negligence, continuing up to the moment of the accident. The duty was equal and each was equally guilty of its breach. Southern Ry. Co. v. Bailey, 110 Va. 833,.67 S. E. 365.

Over the objection of the defendant, the two following instructions were given for the plaintiff:

(1) "The court instructs the jury that if they believe, from the evidence, that the place at which the accident complained of occurred had been in daily use as a walkway for a long time by a large number of persons in that vicinity, and that its use was well known to the defendant, it was then the duty of the defendant company to keep a reasonable lookout for persons upon its tracks at that place, and for its failure to do so it is liable in damages in this case, if the jury believe, from the evidence, that such failure was the proximate cause of the death of the plaintiff's intestate."

(2) "The court instructs the jury that if they believe, from the evidence, that the place at which the accident complained of occurred had been in daily use as a walkway for a long time by a large number of persons in that vicinity, and that its use was well known to the defendant, it was then the duty of the defendant company to use reasonable care to discover Boddy Saunders, if on the track on which the train was proceeding and in danger at the place mentioned, and that if the said defendant did not use such care, and that by its failure so to do the said accident occurred, then they must find for the plaintiff, even though the said plaintiff was guilty of contributory negligence: Provided they believe from the evidence that the servants of the said defendant in charge of its engine did not do all they could consistently with their own safety to.avoid the injury after the said danger to the said Roddy Saunders was known, or might have been discovered by the said servants of the defendant, by the exer-

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexescise of ordinary care in keeping a lookout for persons at the point where the accident occurred."

The first of these instructions tells the jury that the defendant is liable under certain circumstances constituting the plaintiff's case, but wholly fails to mention the defendant's theory of the...