Chesapeake & O. Ry. Co. v. Crouch
| Citation | 208 Va. 602,159 S.E.2d 650 |
| Court | Supreme Court of Virginia |
| Decision Date | 04 March 1968 |
| Parties | CHESAPEAKE AND OHIO RAILWAY COMPANY v. Jewel Ramsey CROUCH, Administratrix, etc. |
Henry M. Sackett, Jr., Norfolk (Williams, Robertson & Sackett, Lynchburg, on brief), for plaintiff in error.
Paul Whitehead, William L. Wilson, Lynchburg, for defendant in error.
Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.
Jewel Ramsey Crouch, administratrix of the estate of Malcolm Lee Crouch, deceased, filed a motion for judgment against Chesapeake and Ohio Railway Company, the defendant, seeking to recover damages for the allegedly wrongful death of Malcolm Lee Crouch. The motion for judgment alleged that the defendant had negligently caused to be started on its right-of-way a fire which spread to adjoining property and that when the deceased, 'in response to request from Forest Warden,' attempted to extinguish the fire, he was severely burned, resulting in his death.
The defendant filed grounds of defense denying negligence on its part and asserting contributory negligence and assumption of risk on the part of the deceased.
A jury trial resulted in a verdict in favor of the plaintiff in the sum of $35,000.00. The verdict was approved by the trial court in its final order, and the defendant was granted a writ of error.
The tragic accident which was the source of this litigation occurred on April 18, 1964. In the early afternoon of that day, sparks from one of the defendant's trains started a fire in the dry grass and weeds on the right-of-way near Joshua Falls on the James River in Amherst County. The fire soon spread to woodland on the adjoining land of E. R. Steger and report thereof was made to the local fire warden, Esmond Brightwell.
Brightwell, before going to the fire himself, sent his nephew to the nearby residence of the deceased to 'call' the latter to 'come and help' control the fire. The deceased was not at home at the time; but when he returned, his wife told him that Brightwell wanted him to help fight the fire.
The deceased, who was a member of the local volunteer fire department and experienced in fighting forest fires, went to the scene of the fire. He spoke to Brightwell, who was engaged with several other men in raking a line to prevent the spread of the fire. He then went farther into the woods where he joined John McFaden, a fire warden, and Lloyd Evans, who had been 'requested' by McFaden to help put out the fire.
McFaden, Evans, and the deceased were raking in a draw or hollow at the foot of a mountain when 'wind got in' the fire and it 'just blew up' on them and became 'extremely hot.'
The deceased suggested that he and his companions lie down in 'a bare spot a few feet' away and 'let the fire go over top' of them. McFaden, however, said, 'No * * * let's get out of here.'
The three men started to 'run * * * out of there.' Brightwell, meanwhile, in fighting the fire, had proceeded up the same draw or hollow where McFaden, Evans, and the deceased had been working. Brightwell saw the deceased come out of the wood 'hollering for help and running.' When Brightwell went to the deceased, he saw that he was badly burned.
McFaden and Evans escaped the fire by going up the side of the mountain, over a ridge, and down the opposite side. When they had reached safety and were resting from their ordeal, they heard Brightwell 'holler'; and when they 'went down to where he was at,' they saw the deceased 'sitting on the bank' of a creek in a severely burned condition. The deceased told McFaden that 'he fell.'
The deceased was taken to a hospital in Lynchburg and later was transferred to a hospital in Richmond where he died on June 4, 1964.
The case was tried in the court below upon common law principles. The jury was instructed, without objection, that for the plaintiff to recover, she was required to establish that the fire resulted from the defendant's negligence and that such negligence was the proximate cause of the death of the deceased. We do not consider, therefore, the possible application to the situation before us of Code, § 56--428, relating to the liability upon railroad companies for damages caused by fires started by engines or trains of such companies.
The assignments of error raise numerous issues; and in its brief, the defendant argues fully the four principal questions which it asserts are presented by this appeal, namely: whether it was negligent Quoad the deceased; whether its negligence in starting the fire, which it now concedes, was the proximate cause of the death of the deceased; whether the deceased, as a matter of law, was guilty of contributory negligence; and whether the deceased, as a matter of law, assumed the risk of the hazards of the fire.
When we examine the brief of the plaintiff, we find that she argues only the application of the so-called 'rescue doctrine,' seemingly as a palliative for all the errors the defendant claims to exist in the judgment under review. But when we turn to the record, we find that, although the plaintiff offered an instruction which would have submitted the issue of the rescue doctrine to the jury, the instruction was refused. The plaintiff neither excepted to such refusal nor assigned cross-error thereto. In any event, the holding about to be made renders inappropriate any application of the rescue doctrine.
In our view, the crucial determination to be made is whether the defendant is correct in its contention that the deceased, as a matter of law, assumed the risk of the hazards of the fire in which he received his fatal injuries.
It is difficult to tell what the plaintiff's position is with regard to the issue of assumption of risk; but apparently it is that because the deceased was summoned by a fire warden under the authority of Code, § 10--59, rather than going voluntarily, to fight the fire, it cannot be said, as a matter of law, that the deceased assumed any risk.
Code, § 10--59 provides, in its pertinent parts, as follows:
* * *
'Any person so summoned who shall fail or refuse to assist in fighting such fire, unless such failure is due to physical inability or other good and valid reason, shall be guilty of a misdemeanor, and upon conviction, shall be fined not more than twenty-five dollars.'
Code, § 10--59 must be read in conjunction with Code, § 10--57 which provides, in part, as follows:
'When any forest warden sees or there is reported to him a forest fire, he shall repair immediately to the scene of the fire and employ such persons and means as in his judgment are expedient and necessary to extinguish the fire, within the limits of the expense he has been authorized to incur in his instructions from the State Forester. * * *'
The legislature, therefore, by the enactment of Code, § 10--57, has conferred upon forest wardens the authority to Employ persons to assist in extinguishing forest fires, obviously contemplating a situation where the necessary assistance can be obtained without resort to compulsion. But where the needed assistance cannot be so freely secured, the legislature, by Code, § 10--59, has conferred upon forest wardens the authority to Summon persons to help in fighting fires, placing those so summoned under pain of prosecution for their failure or refusal to give aid.
Unfortunate though it may be for the plaintiff's position, the record simply does not support the proposition that the deceased assisted in fighting the fire in question because he was summoned under Code, § 10--59 to do so but, rather, because of a prior voluntary arrangement with the forest warden.
In the first place, the plaintiff's motion for judgment alleged that the deceased attempted to extinguish the fire 'in response to request from Forest Warden.' Neither the word 'summoned' nor Code, § 10--59 was mentioned in the motion for judgment.
Secondly, the uncontradicted evidence was that the deceased went to the scene of the fire, not under compulsion of a summons pursuant to Code, § 10--59, but as the result of a previous understanding with Brightwell, the forest warden. Brightwell, testifying as a witness for the plaintiff, was asked, with respect to his calling the deceased to 'come and help' fight the fire in question, 'How did you happen to call him?' Brightwell responded, 'Well, he told me he would go with me to a fire anytime and he had been with me to several fires before that.'
Brightwell explained that 'all Fire Wardens are supposed to have some men that they can pick up most anytime to go.' He stated that the deceased was 'one of those * * * anytime he could go he would go.'
At another point, Brightwell was asked whether the...
To continue reading
Request your trial
-
Walters v. Sloan
...255 Or. 359, 467 P.2d 429, 431; Horcher v. Guerin (1968) 94 Ill.App.2d 244, 236 N.E.2d 576, 578; Chesapeake & Ohio Railway Company v. Crouch (1968) 208 Va. 602, 159 S.E.2d 650, 653; McGee v. Adams Paper & Twine Co. (1966) 26 A.D.2d 186, 271 N.Y.S.2d 698, 706; Aravanis v. Eisenberg (1965) 23......
-
Juhl v. Airington
...limited assumption-of-risk basis for Rule when firefighter suffered injuries inside burning building); Chesapeake & Ohio Ry. v. Crouch, 208 Va. 602, 159 S.E.2d 650, 654, cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968) (asserting assumption-of-risk rationale for Rule when fir......
-
Carpenter v. O'Day
...v. Wharton, Del.Supr., 460 A.2d 1326, 1330 (1983); Robinson v. Meding, Del.Supr., 163 A.2d 272, 276 (1960).11 See C & O Railway Co. v. Crouch, 208 Va. 602, 159 S.E.2d 650, 654, cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968): "The assumption of risk doctrine employed in fire......
-
Washington v. Atlantic Richfield Co.
...John Furniture Corp. (1970), 255 Or. 359, 467 P.2d 429; Krauth v. Geller (1960), 31 N.J. 270, 157 A.2d 129; Chesapeake and Ohio Ry. Co. v. Crouch (1968), 208 Va. 602, 159 S.E.2d 650; Annot., 86 A.L.R.2d 1205 (1962); Prosser, Torts sec. 61, at 397 (4th ed. 1971).) We therefore hold that whil......