Derring's Adm'r v. Va. Ry. & Power Co

• Decision Date: 21 March 1918
• Citation: 95 S.E. 405
• Court: Virginia Supreme Court
• Parties: DERRING'S ADM'R. v. VIRGINIA RY. & POWER CO.

95 S.E. 405

DERRING'S ADM'R.

v.VIRGINIA RY. & POWER CO.

Supreme Court of Appeals of Virginia.

March 21, 1918.

Error to Circuit Court, Norfolk County.

Action by Derring's administrator against the Virginia Railway & Power Company.Judgment for defendant, and plaintiff brings error.Affirmed.

Page, Page & Page and S. Burnell Brasgg, all of Norfolk, for plaintiff in error.

Williams, Tunstall & Thorn, of Norfolk, and W. P Murks, Jr., of Claremont, for defendant in error.

BURKS, J.This is an action to recover for the negligent killing of the plaintiff's intestate.There was a demurrer to the evidence by the defendant company which the trial court sustained, and to the judgment sustaining the demurrer this writ of error was awarded.The judgment of the trial court is so plainly right that it would seem unnecessary to do more than merely state the facts.

The plaintiff's intestate and his brother, J. A. Derring, had been fishing near Chesapeake Station, in Norfolk county.This station is near Ocean View, on the double-track line of the defendant between Norfolk and Ocean View.The defendant operates an electric interurban and street railway line.The tracks at Chesapeake Station run north and south, and the station is on the west side of the tracks.The intestate and his brother were on the east side of the tracks, and it was necessary for them to cross over the tracks in order to board the car for Norfolk.The country is flat and open at this point, the track is straight, and "you can see a long ways down the track."When a short distance from the tracks, variously estimated by Intestate's brother from "10, 15, or 20, steps" to "20 or 25 yards, "they heard and saw the car approaching at a distance of 150 to 200 yards from the station.The car was running at a speed of 20 to 25 miles per hour, and carried a dim light, or such a light as is generally used in the city, and not a bright headlight.Seeing the car approaching, they quickened their speed to a "lively walking gait, " not exceeding 4 to 6 miles per hour, and as they approached they saw several persons on the station platform signaling the car to stop.The car was scheduled to stop on signal, and had uniformly theretofore done so, but on this occasion it neither slackened its speed nor stopped, and in continuing its course struck the intestate, who was attempting to cross the track, inflicting the injury of which he subsequently died.The car was in full view from the time it was first observed at a...