Dun v. Seaboard & R. R. Co.

• Decision Date: 14 February 1884
• Citation: 78 Va. 645
• Parties: DUN v. SEABOARD AND ROANOKE RAILROAD COMPANY.
• Court: Virginia Supreme Court

78 Va. 645

DUN v. SEABOARD AND ROANOKE RAILROAD COMPANY.

Supreme Court of Appeals of Virginia.

February 14, 1884

Error to judgment of hustings court of Portsmouth city, rendered 25th October, 1881, in action of trespass on the case wherein John P. Dun was plaintiff and the Seaboard and Roanoke Railroad Company defendant.

The object of the action was to recover damages for injury inflicted on the plaintiff through the alleged negligence of the defendant. The plaintiff was a passenger on the defendant's railroad; was sitting in a swiftly moving car with his arm protruding a short distance, to-wit: two inches outside of the open car window, when he was struck on the elbow outside the car by some cord-wood which was ranked near enough to the track to come in contact with the arm so protruding. The declaration alleged these facts, but did not charge that the defendant, after seeing plaintiff's position and danger, omitted to warn him thereof. Defendant demurred, and the hustings court sustained the demurrer--and the plaintiff obtained a writ of error from one of the judges of this court.

Borland & Brooke, for plaintiff in error.

The sole ground of demurrer, as disclosed by the argument of the defendant's counsel, was that, as each count contained the statement that the plaintiff's arm was " resting in the open window of the car and protruding a slight distance, to-wit: the distance of two inches out of said window," the declaration on its face disclosed " contributory negligence " on the part of the plaintiff, and that he could not therefore recover.

In sustaining the demurrer the court below erred:

1. Because it withdrew from the consideration of the jury the question of negligence as a fact, and decided it as a matter of law.

( a ) What constitutes negligence would seem to be from the very nature of the case, a question of fact for the jury.

In Beers v. Housatonic Railroad Co., 19 Conn. Rep. 566 the question arose upon the refusal of the lower court to instruct the jury that the facts in evidence constituted negligence, and in the appellate court Cole J says: " When it is considered that negligence or want of due care was here the main fact to be ascertained, and that the facts, or more correctly speaking, the circumstances, thus given in evidence, were only evidential of such main fact, and conducing to prove it, it is obvious that the court could not have pronounced that those circumstances proved the existence of negligence, or want of due care, on the part of the plaintiff, without encroaching on the rights of the jury whose exclusive province it was to weigh the evidence and determine whether it was sufficient for that purpose."

To the same general effect are Aldridge v. Great Western Railroad Co., 1 Eng. Railroad Cas. 852; Zump v. W and M. Railroad Co., 9 Rich. (S. C.), 84; also cited in 2 Redf. Am. Railway Cases, 491; Wooden v. Austin, 51 Barb.; Huelsenkamp v. Railroad Co., 34 Mo.; Phila. and Reading Railroad Co. v. Spearen, 47 Penn. St. 300; Vanderpool v. Husson, 28 Barb. 196; Shepperd v. Railroad Co., 21 Barb. 339; Curtis v. Railroad Co., 20 Barb. 282; Carroll v. Railroad Co., 1 Duer. 571.

The present is a case especially proper to be submitted to a jury, for while there are extreme cases which hold the question of negligence to be at times a question of law for the courts, even they limit the doctrine to those cases where the standard of duty is fixed, and certain, not variable; where the party has failed in the performance of some clear legal duty; where the necessary and inevitable inference, from the undisputed facts, is one of negligence. Brigg v. Taylor, 2 Redfield's Am. Railway Cases, 559; Railroad Co. v. Armstrong, 2 P. F. Smith, 282; Railroad Co. v. Ogier, 11 Casey 71; Railroad Co. v. McClung, 2 Redf. Am. Railroad Cases, 549. But, in the case at bar, the measure of the plaintiff's duty is only ordinary care; such care as a reasonably prudent man, under the same circumstances, would exercise. Norfolk and P. Railroad Co. v. Ormsby, 27 Gratt.; Beers v. Housatonic Railroad Co., supra, and cases cited; Richmond and Danville Railroad Co. v. Anderson, 31 Gratt., cases cited pp. 816, 819.

Here, then, the standard of duty is variable--as variable as the circumstances of each case; here the inference of negligence from the undisputed facts is not necessary and inevitable; here you cannot ascertain whether the plaintiff has violated a clear legal duty, until his duty has been first ascertained, what a prudent man, under the same circumstances, would have done. Hence the doctrine that when ordinary care is the measure of duty, the question of negligence must of necessity be referred to the jury. Carrington v. Ficklin's Ex'or, 32 Gratt. 676, 677.

( b ). It was especially wrong in the court to decide the question of contributory negligence on a demurrer to the declaration.

The rules of pleading require a certain degree of particularity in the statement of a cause of action--sufficient to give the party who is to answer it reasonable notice of the circumstances of the case. Baltimore and Ohio R. R. Co. v. Whittington's Adm'r, 30 Gratt. 805-811. For that reason the declaration in this case states what part of the plaintiff's body was injured, and its position at the time of the accident; but no rule of pleading requires, and the declaration does not pretend to set out, all the facts and circumstances which, as evidence, might affect the question of negligence in plaintiff or defendant. Indeed, in cases like the present, very great latitude or indefiniteness of statement is allowed. Baltimore and Ohio Railroad Co. v. Whittington's Adm'r, supra.

The declaration in this case sets out only so much of the particulars as the rules of pleading require, but does not pretend to state all the circumstances which it is proposed to put in evidence to sustain the claim or meet a defence. As a matter of pleading, it was necessary to state whether the plaintiff was a passenger or an employee, in the cars or on the tract, and how the injury happened, and hence the allegation in the declaration referred to as the grounds of the demurrer; but it was not necessary, and would have been improper, to allege, if they should happen to be facts, that the conductor saw the plaintiff's arm in the window and did not warn him, or even assured him there was no danger in letting it remain there; or that, though his arm protruded from the window two inches, the construction of the window was such that his arm was within the line of the cornice; or that his arm, though out of the window, was within the line of a " dust protector" fastened on the outer edge of the car to keep cinders from coming in the window, and which was also broken by the wood. Yet it cannot be denied that these facts, if they could be proven, and a hundred others which might be mentioned, would negative the charge of contributory negligence, or at any rate should be allowed to go to the jury as circumstances of great value in determining whether or not ordinary care had been exercised by the plaintiff.

The effect, however, of sustaining the demurrer here, is either that to ride with one's arm out of a car window, however slight in distance, is per se negligence, or to require the incorporation into the declaration in such cases, in all their details, even the most trivial circumstances which might tend to rebut the inference of negligence. Neither of these results, we submit, are in accordance with our decisions or practice.

It is at least significant, in this connection, that the books contain, it is believed, no case in which this defence has been raised in this way.

The ground here taken is not to be answered by the argument that by a demurrer to evidence, or a motion for a new trial on the ground that the verdict is contrary to the evidence, questions of fact, even of negligence, may be withdrawn from the jury and decided by the court. It might be sufficient to say those are exceptions to the rule, and no such proceedings have been had in this case; but we will go a little further: In the case of a demurrer to the evidence, the court does not decide what are the facts; the demurrant admits the facts (23 Gratt. 637), and simply calls upon the court to apply the law to them; while the power of the court to grant a new trial because the verdict is contrary to the evidence, is merely supervisory for the correction of palpable error (5 Leigh 598; 6 Leigh 230; 2 Gratt. 594; 28 Gratt. 165), and is not intended to substitute the court for the jury as the arbiter of facts, as is clearly evidenced by the well recognized and most salutary doctrine that new trials will not be granted on this ground merely because the court differs with the jury as to the facts. So that it would seem that neither of the cases furnish an argument against the plaintiff here, where the court is not called upon simply to apply the law to ascertained facts, as in the first case, but to decide questions of fact, and that too, not upon all the evidence in the case, but only upon such a meagre statement of the details as the rules of pleading require, nor as in the second case to correct the palpable error, or unconscientious verdict of the jury.

2. We submit with confidence that the plaintiff's conduct, as admitted in the declaration, does not constitute such contributory negligence as to bar recovery.

To constitute a defence to the action the plaintiff's conduct must have been (a ) negligent, or wanting in ordinary care--such as men of ordinary prudence would exercise.

Was it so? The plaintiff, a passenger, seated next an open car window, suffered his arm to rest in it, so that through inadvertence, or, as we think, a pardonable ignorance of danger, it projected from the window the...