Gimbert v. Norfolk Southern R. Co

• Decision Date: 13 June 1929
• Citation: 148 S.E. 680
• Parties: GIMBERT. v. NORFOLK SOUTHERN R. CO.
• Court: Virginia Supreme Court

148 S.E. 680

GIMBERT.

v.NORFOLK SOUTHERN R. CO.

Supreme Court of Appeals of Virginia.

June 13, 1929.

Error to Law and Chancery Court of City of Norfolk.

Action by R. M. Gimbert against the Norfolk Southern Railroad Company. Prom an order sustaining defendant's plea of res judicata, plaintiff brings error. Affirmed.

V. H. Kellam, of Norfolk, for plaintiff in error.

Jas. G. Martin and C. M. Bain, both of Norfolk, for defendant in error.

CHICHESTER, J. In 1916, R, M. Gimbert, then an infant, about 9 years old, instituted by J. H. Gimbert, his next friend, an action against the Norfolk Southern Railroad Company in the circuit court of Princess Anne county, to recover damages for the loss of a leg which he alleged was caused by the railroad company in negligently backing its train without any warning into a certain car containing gravel and pebbles.

The specific ground of negligence as set out in the declaration, which consisted of two counts, avers that:

"In and near said village of Kempsville, the said defendant did and does still maintain a certain main line track and a certain side track which is connected by switches with the said main line track; that said main line and side tracks are intersected and crossed by two certain public roads running parallel with each other and to wit, within about one hundred or two feet of each other, and said two public roads are connected by a certain public road running parallel with the said tracks of the defendant and immediately adjacent to the said above mentioned side track.

"And the said plaintiff avers that, to wit, on the day and year aforesaid, the said defendant had placed and left standing on said side track certain cars, one of which was loaded with crushed stone, pebbles or rocks; that standing and laying in the road paralleling the said side track and alongside of the car containing crushed stone, pebbles and rocks, was a barrel. And the said plaintiff, an infant of tender years, to wit, eight years of age, too young to realize and appreciate the danger of his position, was standing upon said barrel and reaching in said car and in a chute extending therefrom over the said public road, to get pebbles and rocks therefrom.

"And the said plaintiff avers that the said defendant was operating one of its locomotives upon and along its main line and approaching said side track for the purpose of entering said side track to take therefrom one of the said cars standing thereupon.

"Whereupon it became and was the duty of the defendant to exercise ordinary care in the operation of said locomotive and in the coupling of said cars to prevent injury to others and particularly the plaintiff.

"Yet the said defendant, not regarding its duty in that behalf and wholly neglecting the same, did negligently, recklessly, and carelessly run the said locomotive into the switch and side track and over and across the said public road intersection and crossing the said tracks at a high, dangerous, and excessive rate of speed, and said defendant did negligently, carelessly, and recklessly fail to sound any warning of its approach and entrance into said switch and sidetrack and road crossing, and said defendant did negligently, carelessly, and recklessly fail to have at the rear end of its said locomotive any person to keep a lookout, and said defendant, after it became apparent that there was danger of striking and colliding with said cars upon said side track with excessive force and violence, and when by the exercise of ordinary care the said locomotive could be stopped and slowed down in time to prevent said collision, negligently, carelessly, andrecklessly failed to exercise ordinary care to stop and slow its engine and avoid such collision, and said defendant, negligently, carelessly, and recklessly ran and operated said locomotive into the said sidetrack so that the same was negligently, carelessly, and recklessly caused and permitted to collide with the said cars standing upon the said side track; and said locomotive was negligently, carelessly, and recklessly caused to propel the said cars for a great distance, to wit, fifty feet, and said locomotive was negligently, carelessly, and recklessly caused to immediately move again and in the direction from which it had come and pulling said cars out upon the main track, so that the chute was caused to strike against the switchstand of the defendant and knock the same down."

There was a demurrer to the declaration and to each count thereof, in which the plaintiff joined.

The grounds of demurrer were:

"Each count fails to show any negligence or fault on the part of defendant which would make it liable to plaintiff.

"Each count shows that plaintiff was injured through his own fault and negligence, so that his claim is barred.

"Each count shows that plaintiff was a trespasser and wrongdoer at the time he got hurt, and shows that defendant owed no duty to prevent the accident.

"Each count is so vague and indefinite that the Court and defendant cannot sufficiently understand the case relied on by the plaintiff."

The court sustained the demurrer to the declaration and to each count thereof, but granted leave to plaintiff to file an amended declaration within 30 days.

No amended declaration was filed as provided by the court's order. Indeed, nothing was done for over a year, when the plaintiff again appeared in court and again asked leave to file an amended declaration. Upon this motion the court entered the following order:

"In the Circuit Court of Princess Anne County, on Monday the 18th day of March, 1918.

"This day came again, the parties, by their attorneys, who having been fully heard on the plaintiff's motion for reinstatement, and to be allowed to file an amended declaration, though more than 30 days had elapsed since the time leave was granted to file the same by previous order herein, and the court having maturely considered said motion, doth overrule the same, and refuse to allow said amended declaration to be now filed. Therefore it is considered by the court that this case be...