Hines v. Beard

• Decision Date: 23 June 1921
• Citation: 107 S.E. 717
• Parties: HINES, Director General of Railroads v. BEARD.
• Court: Virginia Supreme Court

107 S.E. 717

HINES, Director General of Railroads

v.BEARD.

Supreme Court of Appeals of Virginia.

June 23, 1921.

Error to Circuit Court, Louisa County.

Proceeding by motion by J. W. Beard against Walker D. Hines, Director General of Railroads. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

D. H. & Walter Leake, of Richmond, for plaintiff in error.

W. Worth Smith, Jr., of Louisa, for defendant in error.

BURKS, J. This is a proceeding by motion by J. W. Beard against Walker D. Hines, Director General of Railroads, to recover damages for a personal injury. The plaintiff, Beard, was a passenger on a passenger train operated by the defendant, and the alleged injury was the result of the derailment of the coach in which he was being carried as a passenger for hire. There was a verdict for the plaintiff for $2,000, which the trial court refused to set aside, and upon which it entered judgment for the plaintiff.

On September 19, 1919, the plaintiff purchased a ticket at Waynesboro from that point to Norfolk, Va., over the Chesapeake & Ohio Railroad, then operated by the defendant, and took passage on one of its passenger trains. While occupying a seat in one of its passenger coaches the train was derailed, and the plaintiff received the injury of which he complains. Later, during the day of the accident, the scene thereof was visited by a commission, composed of the general superintendent, superintendent assistant superintendent, assistant division engineer, and the division master mechanic of the company, for the purpose of ascertaining, if they could, the cause of the derailment. Two of them testified in this cause. They made a thorough examination of the track at and about the place of the derailment, and of the wheels and other parts of the running gear in all parts of the train which could have contributed to the derailment, and, after examination and consideration, "were not able to decide on any cause for the derailment." There was a milk car in the train, next to the engine, and it was the first to leave the track. The milk cars were steel cars, shorter than freight cars, but built foruse and commonly used in passenger trains. The division master mechanic testified that he made—

"a very careful examination of that car, personally gauged and trammed the wheels, personally examined the trucks and all parts of the running gear under those cars the evening after the derailment, and every part was intact, and there wasn't a possible defect that could have contributed to the derailment in any way."

This statement was not in any way contradicted. One of the witnesses for the plaintiff also testified that the track was "in perfect order."

About 18 months before the accident the plaintiff had a severe operation upon his abdomen, which was found to be in a cancerous condition, but on a recent visit to the country of about 4 months he had greatly improved, had gained 40 pounds, and had been free from pain for 2 months prior to the accident He was returning to Norfolk to go to work. He testified that at the time of the accident he struck his abdomen against the seat or some other obstacle, which caused him great pain, and that soon thereafter there developed what for a better name he called a blood blister, or a boil, on his abdomen at the point of operation; that this discharged, and was succeeded by several others, but that the place was then healed. The defendant contended that the cause of the plaintiff's suffering was the cancer, and not the blow received at the derailment.

It is earnestly contended for the plaintiff in error that the notice of the motion charges specific acts of negligence on the part of the defendant and nowhere charges general negligence, and that the plaintiff should be held to proof of the acts charged, and is not entitled to the benefit of the inference or presumption arising from simply proving the relation of passenger, the derailment, and resulting injury. In derailment cases a passenger is not expected to know, nor required to prove, the particulars of the negligence of the defendant resulting in the derailment; but as derailments as a rule do not occur, unless there is negligence on the part of the defendant, who has the immediate control of and is solely responsible for all of the instrumentalities of the carriage, there comes to the aid of the passenger, upon proof of the derailment and consequent injury, an inference, deduction or conclusion, sometimes called a presumption of fact, or simply a presumption of negligence on the part of the defendant, entitling the plaintiff to a verdict if there is no other evidence in the case, or which is to be weighed and considered by the jury with other evidence in the case, if there is such, in determining whether or not the defendant has been negligent. In such cases it is permissible for the plaintiff to charge negligence in general terms. But he may in the same declaration charge negli gence in general terms in one count, and any number of specific acts of negligence in other counts, as was done in Norfolk & W. R. Co. v. Tanner, 100 Va. 379, 41 S.E. 721. In a proceeding by motion, however, it is not necessary, though it may be very desirable, to have separate counts in the notice. The ease may be stated in a composite form, and while the notice must not state too little, that is, it must state sufficient to show liability on the part of the defendant to the plaintiff, it may state more than is necessary to impose such liability. This excess may, as a general rule, be treated as surplusage. In the view we take of the case, however, it will not be necessary for us to decide whether or not the notice does charge both general and special negligence.

A number of errors are assigned in the petition, and they have been argued at great length and with a very full citation of authority; but it will only be necessary to pass on one of them, as that will render a new trial necessary, and the other questions involved are not likely to arise on a second trial.

The giving of instruction 2 on the motion of the plaintiff is assigned as error, because it does not correctly state the law, even if it be conceded that the notice sufficiently charges general negligence. Instruction No. 2 is as follows:

"The court instructs the jury that the burden of proof is upon the plaintiff, but he is not required to point out any specific act of negligence; and if you shall believe from the evidence that the plaintiff was injured while a passenger on defendant's train on the 19th day of September, 1919, by the derailment of the car in which he was a passenger, the presumption of the law is that the accident was caused by the negligence of the defendant; and while this presumption may be rebutted by evidence tending to show that the defendant before the accident exercised the highest degree of care known to human prudence and forethought to prevent the accident, and exercised such care to maintain its roadbed, ties, and rails in proper repair, and by the inspection of its cars by, competent persons, to see that, they were in good order, and that it was handling its train at the time of the accident in a careful and prudent manner, unless you believe from the evidence that the defendant has done all of these things, you will find for the plaintiff."

This instruction put upon the defendant the burden, not merely of rebutting the presumption of its...