Hortenstine v. Va.-carolina Ry. Co

• Decision Date: 23 June 1904
• Citation: 47 S.E. 996,102 Va. 914
• Parties: HORTENSTINE . v. VIRGINIA-CAROLINA RY. CO.
• Court: Virginia Supreme Court

47 S.E. 996

102 Va. 914

HORTENSTINE .

v.VIRGINIA-CAROLINA RY. CO.

Supreme Court of Appeals of Virginia.

June 23, 1904.

RAILROADS — INJURY TO TRESPASSER — NEGLIGENCE—PLEADING—RATE OF SPEED —SIGNALS.

1. A declaration for injuries caused by the negligence of the defendant must show that from the relation existing between the plaintiff and defendant a legal duty was owing from the latter to the former, the failure to discharge which caused the injury.

2. In an action by trespasser upon a railroad track to recover for injuries, the declaration must aver that after the railroad company discovered his peril it could in the exercise of ordinary care have avoided injury to him.

3. A railroad company owes to trespassers and licensees no duty of providing reasonably safe and proper appliances.

4. A railroad company owes to a trespasser upon its track no duty in regard to the rate of speed or schedule time upon which it shall run its trains.

5. Section 2900, of the Code of 1887, preserving to any person injured by a violation of the statute the right to maintain an action for injury, was designed only to preserve such right where it existed at common law, and not to give a right of action where none existed.

, 6. The statute requiring a railroad company 'to sound the whistle of its engine before reaching a crossing was not made for trespassers nor licensees, and it owes no such duty to them.

7. In actions for tort the declaration must state sufficient facts to enable the court to say upon demurrer whether, if the facts stated are proved, plaintiff would be entitled to recover.

Error to Circuit Court, Washington County.

Action by J. W. Hortenstine, administrator of W. P. Richards, against the Virginia-Carolina Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

John W. Neal and L. P. Summers, for plaintiff in error.

White & Penn, for defendant in error.

CARDWELL, J. This action was brought in the circuit court of the county of Washington by the administrator of W. P. Richards, deceased, against the Virginia-Carolina Railway Company, to recover damages for the death of plaintiff's intestate, caused, as alleged, by the negligence of the defendant company. The declaration contains seven counts, and the defendant company demurred to it and to each count thereof, which demurrers were sustained, and a final judgment rendered in favor of the defendant company. To this judgment this writ of error was awarded.

Substantially, the allegation of the first count in the declaration is that the defendant company was possessed of certain engines and cars, used and employed in carrying passengers and freight along the line of its railway in Washington county, Va., and that on the 10th day of November, 1901, the defendant company conducted itself so negligently and unskillfully in the operation of its said business as to inflict upon the plaintiff's intestate severe bodily injuries, by reason whereof he died. It is insisted that this count measures up to the requirements of a declaration in such actions, as laid down in B. & 0. R. R. Co. v. Sherman's Adm'x, 30 Grat. 602, and approved in N. & W. R. R. Co. v. Harman's Adm'r, 83 Va. 553, 8 S. E. 251, Seaboard, etc., R. R. Co. v. Joyner's Adm'r, 92 Va. 354, 23 S. E. 773, and Birck-head v. C. & O. Ry. Co., 95 Va. 648, 29 S. E. 678, since by these authorities it is sufficient to set forth the cause of action in general terms, and aver that the injury was inflicted by the wrongful act, neglect, and default of the defendant.

In B. & O. R. R. Co. v. Whittington's Adm'r, 30 Grat. 805, the same judges who decided the case of B. & O. R. R. Co. v. Sherman's Adm'x, evinced an apprehension that they had gone further in that case than in principle they should have gone. The only material difference between the declarations in the two cases is that in the last named the place where the alleged negligent act was committed is designated, while in the first named it is not; and the first count in the declaration in the case at bar is in form and substance the second count in the declaration in the Whittington Case, where in the opinion by Staples, J., sustaining a demurrer to that count, it is said: "Now, whether the plaintiff's intestate was at the time a passenger on the train and received his injuries as such, or whether he was an employe of the company and was injured while engaged in its service, or whether he was a stranger crossing the track of the company's road, or whether he was on the track at all, or in the cars, or at the station, or in what manner he was injured, the declaration does not inform us. It was impossible for the defendants to learn from this declaration the grounds upon which plaintiff was proceeding. The declaration amounted to an averment, simply, that the plaintiff's intestate was injured by the negligence of the defendants in the operation of their business in using and employing their engines on their railway." And then, after stating the object "of a declaration, which is too well understood to be repeated here, the learned judge continues: "It is very true that in actions for torts it is frequently sufficient to describe the injury generally, without setting out the particulars of the defendant's misconduct. In such cases great latitude of statement is allowed. But this rule does not justify a general and indefinite mode of declaring, admitting of almost any proof. * * * The learned counsel for the plaintiff insists that, if greater particularity is required in stating the cause of action, the plaintiff is liable to be defeated on the trial by a variance between the allegations and the proofs. A declaration can, however, subserve no good purpose unless it be sufficiently specific to inform the adverse party of the ground of complaint. If it is deficient in that particular, it may as well be dispensed with altogether. The plaintiff is presumed to have some knowledge of the facts upon which his action is founded. If he is in doubt as to the precise nature of the evidence, he may frame his declaration with different counts, varying his statements to meet every possible phase of the testimony."

The language just quoted applies with all of its force to the first count of the declaration here under consideration, and is inapplicable to the declaration in the Sherman Case only in one particular, viz., the fact that the declaration in the last-named case states that Sherman, the person injured, was "on the track" of the defendant at the time of his injury, while the first count in the declaration at bar utterly fails to designate where plaintiff's intestate was when he received the alleged injuries from which he died; and in this failure, at least, to designate the place, it is different from the declaration in the Sherman Case, and conforms to that in the Whittington Case.

The second count states that on the day of the alleged accident plaintiff's intestate was on a certain pump or hand car which was then and there being used on the said railroad, with the knowledge and consent of the defendant company, etc.

As remarked by counsel for the defendant company in the argument here, "This may be said of every railroad company in the state, as they all have hand cars, which are being used daily on their roads. But the duties which these companies owe to persons upon these hand cars is determined by the capacity in which they are there." In what capacity, and by what right, was plaintiff's intestate on this particular hand car on the day of the accident? Was he there as an employe^ of the defendant company, engaged in its business? Or was he a stranger, who was there, assuming all the attendant risks, without the knowledge and consent of the defendant company, and to whom it owed no duty, except not willfully or intentionally to injure him after discovering his peril? As to these matters the declaration is silent. While the declaration states that plaintiff's intestate was upon the hand car, it fails to state where the hand car was at the time of the accident, or that it was on the track at that time. Stress is laid in the argument for the plaintiff upon the averment that the hand car, on the day stated, was being used on the railroad with the consent of the defendant company, but the declaration nowhere states that plaintiff's intestate was on the hand car with either the knowledge or the consent of the defendant company. Consent is either expressed or implied, and it is not claimed that the consent of the defendant company to the use of the hand car was express; and, if the plaintiff intended to rely upon an implied consent, it was but fair to the defendant company that the facts to be relied on to warrant an implied consent be stated in the declaration. The relation which actually existed between the plaintiff's intestate and the defendant company at the time of the alleged injury may have been one or several, out or which different measures of duty from the defendant company would arise, and unlessthe duty owing, and which the defendant company failed to discharge, was a legal duty, it would not be liable for the injury. The duty must be owing to the party injured, and the declaration must show this, otherwise it is clearly demurrable. N. & W. R. R. Co. v. Wood, 99 Va. 156, 37 S. E. 846,

Carson Lime Co. v. Rutherford, 102 Va. —, 46 S. E. 304.

In the first-named case (which was similar in many respects to the case at bar) the opinion by Buchanan, J., says: "It has been held in several cases by this court that it was not necessary in cases like this to aver in terms the relation which existed between the plaintiff and defendant at the time of the injury (though that is clearly the better practice), but that it is sufficient if such averments are made as to the circumstances under which the plaintiff was injured as will show the existence of the duty which it is averred has been neglected, and which neglect has caused plaintiff's injury." In other words, the...