Connell's Ex'rs v. Chesapeake &

• Decision Date: 09 April 1896
• Citation: 93 Va. 44,24 S.E. 467
• Court: Virginia Supreme Court
• Parties: CONNELL'S EX'RS. v. CHESAPEAKE & O. RY. CO. et al.

24 S.E. 467

93 Va. 44

CONNELL'S EX'RS.

v. CHESAPEAKE &O. RY. CO. et al.

Supreme Court of Appeals of Virginia.

April 9, 1896.

Pleading — Demurrer — Waiver by Amending Pleading on Demurrer Sustaining Carriers op Passenger — Injury to Passenger from Robbers—Intervening Causes.

1. Where a demurrer is sustained to a complaint with leave to amend, plaintiff, if he exercises the privilege to amend, waives any error in sustaining the demurrer.

2. The rule that no responsibility for a wrong attaches whenever there intervenes the act of a third person between defendant's negligence and the injury sustained does not apply to a case against a carrier for injuries to a passenger by a robber, the alleged negligence of the carrier being its failure to prevent the intrusion of the robber into the cars.

3. A railroad or sleeping-car company is not liable for the death of a passenger at the hands of an intruder upon the cars for the purpose of robbery, in the absence of evidence to show that they or their employes knew of the danger impending, or of circumstances to arouse their suspicion.

Error to circuit court of city of Richmond.

Action by the executors of D. F. Connell against the Chesapeake & Ohio Railway Company and another for the death of their testator. From a judgment for defendants, plaintiffs bring error. Affirmed.

The executors of D. F. Connell, in an action of trespass on the case brought in the circuit court of the city of Richmond, complain of the Chesapeake & Ohio Railway Company and the Pullman Palace-Car Company, defendants, and set out the following cause of action: That on the 1st of August, 1891, their testator was a passenger upon a sleeping car owned by the Pullman Palace-Car Company, which was attached to and made a part of the train running upon the tracks of the Chesapeake & Ohio Railway Company, and that it became the duty of the defendants to use due and proper care that he should be safely and securely carried on said railway, as aforesaid, and protected from violence and injury while on the train; that the defendants did not use due and proper care in that behalf, but by their negligence, carelessness, and default, at or near Waynesboro, or between Waynesboro and Basic City, on the line of said railway, some person to the plaintiffs unknown, armed with a deadly weapon, was allowed by the defendants to enter the car or coach owned or controlled and run by the defendants, in which plaintiffs' testator was then riding, with the intent to rob or murder him, and who did, without default on his part, shoot him in the abdomen with a ball fired then and there from a gun or pistol, without any attempt being made by the defendants, or their servants or agents, to protect him, inflicting thereby a deadly wound, hurt, and injury; and that as the result and direct consequence of the wound and injury thus inflicted, their testator died, on the 4th of August 1891. The second count alleges that, being a passenger on the Chesapeake & Ohio Railway Company, their testator, out of extra precaution, and for the purpose of obtaining greater security and protection, took passage on the sleeping car or lodging coach owned or leased by the defendants, and lost his life, substantially as described in the first count The third count avers that he was shot while asleep in his bed or berth. The fourth count charges negligence upon the part of the defendants in failing to perform their duty reasonably to guardand protect the plaintiffs' testator, while a passenger, against violence from any person on said coach or car. And the fifth count avers that, while occupying a berth in the sleeping car, the defendants and their servants carelessly and negligently conducted and behaved themselves in not keeping proper care and watch, so as to reasonably protect plaintiffs' testator from violence from any person on or in said sleeping car; and that, by and through their negligence, carelessness, and default, some person unknown to the plaintiffs, armed with a deadly weapon, was allowed to go to the berth in which their testator was sleeping, with the intent to rob or murder him, and inflicted the wound before described. To this declaration, and to each one of its five counts, which, while varying somewhat as to the mode of stating the plaintiffs' case, present substantially the same question of law, the defendants filed their demurrer. The circuit court sustained the demurrer, and permitted the plaintiffs to amend their declaration; and an amended declaration was accordingly filed. To this declaration, and to each count thereof, the defendants also demurred, and the court sustained this demurrer; and thereupon the plaintiffs applied to one of the judges of this court for a writ of error, which was allowed.

Cabell & Cabell, for plaintiffs in error.

H. T. Wickham and Henry Tayler, Jr., for defendants in error.

KEITH, P. The first ground of error assigned here is to the action of the court in sustaining the demurrer to the original declaration. This position cannot be maintained; this court having held that, where a demurrer is sustained with leave to amend, if the plaintiffs exercise that privilege, they cannot afterwards be heard to object to the judgment upon the original declaration. See Hopkins v. Richardson, 9 Grat, at page 487; Darracott v. Railroad Co., 83 Va. 288, 2 S. E. 511.

The demurrer to the amended declaration presents a question of novelty and interest, which, it is believed, has seldom arisen, and which certainly has never been passed upon by this court. Railways engaged as carriers of passengers, while not insurers against all injuries except by the act of God or of public enemies, as are the carriers of goods, are yet bound to carry safely those whom they take into their coaches, in so far as human care and foresight can provide, —that is to say, are bound to use the utmost care and diligence of very cautious persons; and they will be held liable for the slightest negligence which human care, skill, and foresight could have foreseen and guarded against. See Parish v. Reigle, 11 Grat. 697. A passenger who sustains an injury growing out of the negligence of the carrier's servants or agents, or because of any defect in machinery, coaches, roadway, or other appliance connect ed with its transportation of passengers, is presumed, until the contrary is shown, to have been injured through the negligence of the carrier; and, upon proof of the injury, he has a prima facie case, which, in the absence of proof to the contrary, entitles him to recover damages for the wrong. The injury here, however, is not the result of any defect in the instrumentalities used by the defendants. The negligence averred is in the failure to observe such care and to take such precautions as would effectually protect a passenger asleep, in the nighttime, upon a Pullman coach, constituting a part of the train of the Chesapeake & Ohio Railway Company, from an assault made upon him by some unknown person, a passenger or intruder, as the declaration alleges, who was permitted to enter the Pullman car with intent to commit murder or robbery, and who did inflict upon the plaintiffs' testator injuries from which he died. It is not averred that the defendants or their employes knew that any danger impended over the testator of the plaintiffs in error, or that there was any circumstance to arouse their suspicion, however watchful and alert they may have been.

Counsel for the plaintiffs in error have brought to the attention of the court a number of adjudged cases which, upon investigation, turn out to be suits brought to recover damages for the loss of property upon sleeping cars by robbery or larceny. These cases establish a very high degree of duty from sleeping-car companies to their patrons, and language is used which would go far to sustain the contention of the plaintiffs in error were the facts under investigation in those cases at all similar to those under consideration here. In the case of Carpenter v. Railroad Co., 124 N. Y. 53, 26 N. E. 277, the court says that "a traveler who pays for a berth is invited and has a right to sleep, and both parties to the contract know that he is to become...