Haley v. Trice's Adm'x

• Citation: 88 S.E. 314
• Court: Supreme Court of Virginia
• Decision Date: 16 March 1916
• Parties: HALEY, CHISHOLM & MORRIS. v. TRICE'S ADM'X.

88 S.E. 314

HALEY, CHISHOLM & MORRIS.

v.TRICE'S ADM'X.

Supreme Court of Appeals of Virginia.

March 16, 1916.

Rehearing Denied April 3, 1916.

Error to Circuit Court, Prince George County.

Action by J. F. Trice against Haley, Chis-holm & Morris. Upon plaintiff's death before trial, the suit was revived and prosecuted in the name of his administratrix. To review a judgment for plaintiff, defendants bring error. Reversed.

D. Lawrence Groner, of Norfolk, for plaintiff in error.

O'Flaherty, Fulton & Byrd, of Richmond, for defendant in error.

HARRISON, J. This action was brought by J. F. Trice to recover of the plaintiffs in error damages for personal injuries alleged to have been caused by their negligence. The plaintiff died before the trial, and the suit was revived and has been since prosecuted in the name of the defendant in error as his administratrix. Upon the trial there was a verdict and judgment in favor of the plaintiff, which we are asked to review and reverse.

It appears from the record that the defendants were railroad builders and contractors, engaged at the time of the accident in double-tracking a section of the Norfolk & Western railroad in Prince George county. In the prosecution of this work they used steam shovels, dinky engines, dump cars, and other similar appliances. Trice, the plaintiff's intestate, had been for some time prior to the accident an engineer running one of the dinky engines used in the work. On the morning of the accident, he was directed by Harris, the dump foreman, to couple his engine to another dinky engine, which was in turn coupled to some 24 dump cars, and to take the cars in a westerly direction, so that the last car of the train would be opposite the steam shovel. This movement necessitated the running of his engine backward. The day was clear, the track was straight, the land was level, and there were no obstructions to the view in the direction in which he was going. In order to jack up theend of a section of the track so that the steam shovel could he operated, the shovel had been backed so that it extended temporarily over the dinky track. As soon as the dinky train started back, Payne, who was in charge of the steam shovel, ran out and began signaling to Trice to stop. The undisputed evidence is that Trice was standing in his cab with his back in the direction in which he was going, and that he did not once turn to see if anything was in the way ahead of him. His explanation is that he was engaged in looking at signals from Harris, the dump foreman. As he did not once look in the direction he was going, he did not see the signals that Payne was giving to warn him of the situation of the steam shovel until it was too late for him to stop, and his engine collided with the steam shovel, resulting in the injuries complained of.

In the deposition of Trice, which was read on the trial, he says that in moving his engine at the time he was acting upon the "highball" signal, which meant that "he was to go as fast as he could." "Run pretty fast, I thought; that is what I was doing." The uncontradicted evidence shows that the plaintiff's intestate repeatedly admitted that no one but himself was at fault or responsible for the accident; that it resulted from his running too fast and from his failure to look back in the direction he was going. Stilwell, the engineer on the other dinky which was attached to the train, a witness for the plaintiff, was asked on cross-examination if the deceased stated whose fault it was that the accident happened. His reply was:

"I said, 'Mr. Trice, I am sorry to see you in this shape.' And he said: 'Yes, I can't blame anybody but myself. I was running too fast, and if ever I run another dinky I will not run it that fast, and I can't blame anybody in God's world but myself.' "

This conversation occurred on the day of the accident. Dr. Terrell, his family physician, who attended the deceased after he had been taken to his home in Louisa county, was asked, "Did he make any statement about how it occurred, as to whose fault it was?" and he replied:

"Yes, sir; I went in and told him I was very sorry to see him in that condition, and asked how in the world it happened, and he said it was altogether from running too fast, and he went on to say that he was running as fast as any lightning express ever ran over the C. & O. road."

The doctor further says that his mental condition was all right and that he knew what he was saying. E. H. Poindexter, a merchant who lived at Frederick Hall, says that he saw the deceased after he was brought home, and he said that "the accident was caused through recklessness." N. T. Payne, who had charge of the steam shovel and saw the deceased at the time of the accident, was asked, "What did he say about the blame for the accident?" and replied:

"Every time I would leave he would call me, and I would go back, and sat down and talked to him, and I said, 'Mr. Trice, I am mighty sorry to see you in this condition.' And he said: 'Yes, it is mighty bad. I can't blame anybody but myself. I ought to have been looking where I was going.' "

This witness further states that his mind was all right,

J. B. Shelton, who was the steam shovel cranesman at the time of the accident, was asked the following questions:

"Q. What did you hear him say, if anything, as to how this accident occurred, and who was to blame for it? A. I heard him say that he did not blame anybody for the accident but himself.

"Q. Did you hear him make any explanation as to how it occurred? A. I heard him say that he was running too fast, he thought, and had been running his engine too fast the last two or three days since he had been on the good track.

"Q. Did he say anything about whether he was keeping a lookout or not? A. I heard him say that he was looking the other way, and not looking the way that he was going."

A. S. Ayers, one of the employes of the defendants, who had a conversation with the deceased the next morning after the accident, was asked, "How did he state to you it occurred?" and replied:

"I went to see him next morning, and I asked him: 'How in the world did this occur right on a dead straight track, and you could see, sitting on the engine, right straight up the line? How did this occur anyhow?' He says: 'Mr. Ayers, it was nothing but our own fault, carelessness ourselves that caused this trouble. I don't blame' anybody but myself. We were not looking at what we were doing.'"

F. H. Sharp, an employ of the defendants who had a conversation with the deceased on the day of the accident, was asked, "Did he make any statement as to how this accident occurred?" and said:

"I asked Mr. Trice how in the world the accident occurred. Mr. Trice told me that he did not blame anybody but himself. He says, 'I was running my engine too fast.' He said, 'If I ever get up again, and get on an engine again, I will never run it the same...