Farley's Adm'r v. Richmond & D. R. R. Co.

• Decision Date: 29 April 1886
• Citation: 81 Va. 783
• Court: Virginia Supreme Court
• Parties: FARLEY'S ADMINISTRATOR v. R. & D. R. R. CO.

81 Va. 783

FARLEY'S ADMINISTRATOR v. R. & D. R. R. CO.

Supreme Court of Appeals of Virginia.

April 29, 1886

Error to judgment of circuit court of Chesterfield county, rendered 26th May, 1883, in an action of trespass on the case for damages for the negligent killing of John T. Farley, wherein M. E. Richerson, administrator of said Farley, was plaintiff and the Richmond & Danville Railroad Company was defendant. A verdict was rendered for $10,000 damages subject to the demurrer to the plaintiff's evidence which demurrer the court sustained, and rendered judgment for the defendant. And to this judgment the plaintiff obtained from one of the judges of this court a writ of error and supersedeas.

Opinion states the case.

P W. McKinney, T. M. Miller and W. J. Dance, for the plaintiff in error.

H. H. Marshall, for the defendant in error.

OPINION

HINTON, J.

The only question in this case is whether the demurrer to the evidence was properly sustained.

The rule in regard to contributory negligence as laid down in Tuff v. Warman, 5 C. B. (N. S.), 573, the leading case on the subject, is tat where the plaintiff has so far contributed to the misfortune by his own negligence or want of ordinary and common care, that, but for such negligence or want of ordinary care and caution on his part, the misfortune would not have happened, there the damages cannot be apportioned and the plaintiff cannot recover. But to this rule there is this important qualification added by the very accurate judge who delivered the opinion in that case, namely, that " mere negligence or want of ordinary care and caution will not disentitle the plaintiff to recover, unless it were such that, but for that negligence or want of ordinary care and caution, the misfortune could not have happened, nor if the defendant might, by exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff and the obvious reason for the qualification is that the mere negligence of the plaintiff cannot operate to discharge the defendant from the duty incumbent upon every person that he must so use his property as not to injure the person and property of his neighbor, if this can be done by the exercise of a proper degree of care on his part."

The rule thus announced has been substantially and generally adopted in this country (see Shear and Redf. on Negligence 3d ed., sections 25, 36 and 493) and is...