Chesapeake & O. Ry. Co v. Corbin'sadm'r
| Decision Date | 03 March 1910 |
| Citation | 67 S.E. 179,110 Va. 700 |
| Court | Virginia Supreme Court |
| Parties | CHESAPEAKE & O. RY. CO. v. CORBIN'SADM'R. |
1. Railroads (§ 356*)—Injury to Persons on Track—"Licensees"—Customary Use of Track.
Where the roadbed of a railroad had long been used with the knowledge and tacit consent of the railroad as a common passageway by the public generally at all times, a pedestrian on the roadbed was a "licensee, " and the railroad owed him the duty of ordinary care to avoid injuring him.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 122S-1234; Dec. Dig. § 356.*
For other definitions, see Words and Phrases, vol. 5, pp. 4143, 4144; vol. 8, p. 7706.]
2. Negligence (§ 832-*)—"Discovered Peril."
The doctrine of "discovered peril" is a qualification of the rule that contributory negligence bars a recovery, and involves the principle that, though plaintiff was guilty of negligence in exposing himself to peril, he may recover where defendant, after knowing of the danger, could have avoided the injury by the exercise of ordinary care, but failed to do so.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*]
3. Railroads (§ 390*)—Injury to Persons on Track—Licensees—Discovered Peril.
Where a pedestrian killed by a train was a licensee, to whom the trainmen owed the duty of keeping a reasonable lookout to avoid injuring him, and the engineer could have discovered his presence, under circumstances naturally inducing belief that he was unconscious of danger, in time to have warned him of the approach of the train, or to have stopped it and avoided the accident, and failed to do so, the railroad was liable.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dee. Dig. § 390.*]
4. Railroads (§ 398*)—Death of Licensee-Negligence—Evidence.
In an action for the death of a licensee struck by a train, evidence held to justify a finding of a negligent failure to exercise ordinary care to avoid injuring decedent, authorizing a recovery notwithstanding decedent's negligence.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1356-1359; Dec. Dig. § 398.*]
5. Trial (§ 156*)—Demurrer to Evidence— Determination—Admissions.
Where the jury might have found a verdict for plaintiff, the court on a demurrer to the evidence must so find.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 354-356; Dec. Dig. § 156.*]
Error to Circuit Court, Alleghany County.
Action by W. W. Corbin's administrator against the Chesapeake & Ohio Railway Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.
R. L. Parrish, for plaintiff in error.
Chas. & D. Curry and Wm. E. Allen, for defendant in error.
This action was brought by the administrator to recover damages of the Chesapeake & Ohio Railway Company for the alleged negligent killing of his intestate, W. W. Corbin.
The writ of error brings under review a judgment for the plaintiff on a demurrer to the evidence.
The accident occurred in the daytime, within the yard limits, in the town of Covington. The railroad at that point is double-tracked, and runs nearly east and west; east-bound trains run on the southern track, and westbound trains on the northern track.
For a year prior to his death, Corbin had been working as a laborer in Covington and the vicinity, and on the occasion of the accident he was walking in a westerly direction on the southern track, and stepped off between the tracks to avoid an east-bound freight train. He walked on between the tracks until the train had passed, and then stepped upon the northern track, crossing it diagonally, and continued his westerly course, walking on the ends of the cross-ties outside the northern rail. He had proceeded in that manner 20 or 30 steps when he was struck from behind by a regular west-bound freight train, and fatally injured.
The general contentions on behalf of the defendant company are that the train, consisting of 42 empty cars drawn by one of its largest engines, was traversing a curve, which so obstructed the engineer's view of the track that, though he was keeping a reasonable lookout through the front window of his cab, he did not and could not discover Corbin until after he was struck. The fireman, it was said, was engaged in firing his engine to enable it to overcome the heavy grade of the Alleghany mountain, and consequently was not in position to keep a lookout along the track from his side of the cab, and, morever, that the plaintiff's right to recover is barred by Corbin's contributory negligence.
On the other hand, the fact is not controverted that the roadbed had long been used, with the knowledge aud tacit consent of the company, as a common passageway by the general public at all hours of the day and night. Indeed, it was shown to be more traveled by men, women, and children indiscriminately than the streets of the town. Under these circumstances Corbin was a licensee upon the right of way, to whom the company owed the duty of ordinary care to avoid injuring him.
The evidence for the plaintiff tended to show that the train was running at the rate of 10 or 12 miles an hour, and could have been stopped in 150 feet, that the curve ends 20 feet east of the point of collision, and that in looking through the front window of the cab on the engineer's side Corbin could have been seen three rail lengths, or 90 feet, from the cab, which would have placed him 45 feet in front of the pilot. It was likewise shown by actual experiment that, despite the curvature of the track an engineer leaning out of the side window of his cab (the position which the witnesses for the plaintiff testified the engineer was occupying at the time of the accident) was visible to a person standing on the end of the cross-ties, where Corbin was when the collision occurred, from 150 to 200 yards. The evidence furthermore tended to show that the engineer was looking in Corbin's direction; that Corbin was walking slowly along the ends of the cross-ties with his back toward the approaching train, and with an umbrella in his left hand, hoisted, and the handle resting across his shoulder, and with his dinner bucket in his right hand; that he was apparently wholly unconscious of danger. One of the witnesses, who passed him shortly before he wasstruck, testified that he appeared to be ill. Under these conditions the train was run down upon him without abatement of speed, and without ringing the bell, blowing the whistle, or giving any other signal to warn him of danger. Such warning could have been given when the train was 50 feet away, and one step from the end of the cross-tie would have saved his life.
We are of opinion that upon the demurrer to the evidence the record presents a case for the application of the doctrine of discovered peril. That doctrine is a qualification of the general rule that the contributory negligence of the person injured ordinarily bars a recovery. The exception involves the principle, that, although the plaintiff has been guilty of negligence in exposing himself to peril, he may nevertheless recover if the defendant, after knowing of his danger, could have avoided the injury by the exercise of ordinary care, and fails to do so.
In 29 Cyc. 530, this subject is treated under the subheading, "Injury Avoidable Notwithstanding Contributory Negligence, " and there is no principle of the law of negligence of more universal application. The text is sustained by decisions of courts of last resort of most of the states of the Union, of the District of Columbia, the United States courts, and the courts of England and Canada; and in no jurisdiction has the principle been more repeatedly announced than by this court. R. & D. R. Co. v. Anderson's Adm'r, 31 Grat. 812, 31 Am. Rep. 750; Clark's Adm'r v. Same, 78 Va. 709, 49 Am. Rep. 394; Farley's Adm'r v. Same, 81 Va. 783; Va. M. Co. v. Boswell's Adm'r, 82 Va. 932, 7 S. E. 383; C. & O. R. Co. v. Lee, 84 Va. 642, 5 S. E. 579; Seaboard & Roanoke R. Co. v. Joy-ner's Adm'r, 92 Va. 354, 23 S. E. 773; Washington & So. R. Co. v. Lacy, 94 Va. 460, 26 S. E. 834; Kimball & Fink v. Friend, 95 Va. 125, 27 S. E. 901; N. & W. Ry. Co. v. Wood, 99 Va. 156, 37 S. E. 846; Humphrey's...
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