Ingle v. Clinchfield R. Co.

• Decision Date: 23 September 1937
• Citation: 169 Va. 131
• Parties: DAN INGLE, ADMINISTRATOR, ETC. v. CLINCHFIELD RAILROAD COMPANY.
• Court: Virginia Supreme Court

Page 131

169 Va. 131

DAN INGLE, ADMINISTRATOR, ETC. v. CLINCHFIELD RAILROAD COMPANY.

Supreme Court of Virginia, Staunton.

September 23, 1937.

Present, All the Justices.

1. RAILROADS — Injuries to Persons on or near Track — Licensees — Who Are Licensees — Case at Bar. — In the instant case, an action to recover for the death of a child who was struck by a train, decedent, with her mother and two other children, was walking on defendant's right of way toward a flag stop where they intended to board a train, when a freight train approached from behind them. Decedent's mother called to her to stop, but she failed to heed, turned toward the track, placed one foot on the rail and looked toward the train, and was unable to get off the track before she was struck. The path along which decedent was walking had been used for a long time by pedestrians, and defendant knew of such use.

Held: That decedent was not an invitee but, at most, was a licensee.

2. RAILROADS — Injuries to Persons on or near Track — Licensees — Assumption of Risk. — A licensee goes upon the right of way of a railroad company at his own risk and enjoys the license subject to the perils arising there.

3. RAILROADS — Injuries to Persons on or near Track — Licensees — Duty of Railroad in General. — No duty is imposed upon a railroad company to keep its premises in a safe condition for the use of licensees, and it is only liable to a licensee for wilful and wanton injury which may be inflicted by the gross negligence of its agents and employees.

4. RAILROADS — Injuries to Persons on or near Track — Licensees — Duty to Make Previous Preparation to Discover Licensees. — It is not the duty of a railroad company to have a lookout on its front car, or to make any previous preparation for the discovery of licensees on its tracks.

5. NEGLIGENCE — Duty Owed Licensees — Assumption of Risk. — A bare licensee is only relieved from the responsibility of being a trespasser, and takes upon himself all of the ordinary risks attached to the place and the business carried on there.

6. RAILROADS — Injuries to Persons on or near Track — Licensees — Duty to Have Lookout or Give Warning. — A railroad company does not owe to a licensee the duty of running its train in a particular manner or at a particular rate of speed, and is under no obligation to keep a lookout on its car, or ring its bell, or to blow its whistle, and the mere failure to do any or all of these things does not give him a right of action.

7. RAILROADS — Death of Child on Track — Duty to Give Warning — Where Child and Mother Knew of Approach of Train — Case at Bar. — In the instant case, an action to recover for the death of a child who was struck by a train, decedent, with her mother and two other children, was walking along defendant's right of way in a path long used by pedestrians, to defendant's knowledge, when a freight train approached from behind them. Decedent's mother heard the train and called to decedent to stop, but she failed to heed, turned toward the track, placed one foot on the rail and looked toward the train, and was unable to get off the track before she was struck. Plaintiff contended that defendant should have given warning of the approach of the train.

Held: That no warning was necessary because decedent and her mother knew of the approach of the train, for they heard it, and therefore a warning by bell or whistle would have given them no better notice of the danger.

8. RAILROADS — Death of Child on Track — Duty to Anticipate Peril and Reduce Speed — Where Child Is in Custody of Mother in Safe Place — Case at Bar. — In the instant case, an action to recover for the death of a child four years of age who was struck by a train, decedent was walking about one hundred and fifty feet ahead of her mother in a path on defendant's right of way when a freight train approached from behind them. Decedent's mother heard the train and called to decedent to stop, but she failed to heed, turned toward the track, put one foot on the rail and looked toward the train, and was unable to get off the track before she was struck. Defendant's agents could have seen decedent and her mother when the train was from one thousand to fifteen hundred feet away, and plaintiff contended that defendant's agents should have noticed the proximity of decedent to the track, should have anticipated that children of that age are irresponsible and would not appreciate the danger of an approaching train, and should have reduced the speed of the train. When decedent stepped on the track the whistle was sounded and the emergency brakes were applied.

Held: That there was no merit in plaintiff's contention, since decedent's mother had apparent custody and control of decedent and if defendant's agents had seen decedent when the train was fifteen hundred feet away there was no way whereby they could discern that decedent was a considerable distance ahead of her mother or that she would turn upon the track too close to the train, and there was no conduct on decedent's part indicating that she would leave the place of safety and go upon the track, until the train was so close it could not be stopped without striking her.

9. RAILROADS — Children on Track — Principles Controlling Operation of Motor Vehicles Inapplicable. — The principles controlling the operation of motor vehicles upon a public highway where children may be, have no application to the operation of trains by a railroad company upon its own tracks when children may be upon the right of way.

10. RAILROADS — Death of Child on Track — Last Clear Chance — Case at Bar. — In the instant case, an action to recover for the death of a child four years of age who was struck by a train, decedent was walking about one hundred and fifty feet ahead of her mother in a path on defendant's right of way when a freight train approached from behind them. Decedent's mother heard the train and called to decedent to stop, but she failed to heed, turned toward the track, put one foot on the rail and looked toward the train, and was unable to get off the track before she was struck. When decedent stepped upon the track the whistle was sounded and the emergency brakes were applied.

Held: That the doctrine of the last clear chance had no application, for the evidence clearly showed that the trainmen did all that was reasonably possible to save decedent after they saw her leave the path and go on the track.

11. RAILROADS — Death of Child on Track — Sufficiency of Evidence to Sustain Recovery — Case at Bar. — In the instant case, an action to recover for the death of a child who was struck by a train, decedent was walking ahead of her mother in a path on defendant's right of way, which was used by pedestrians to defendant's knowledge, when a freight train approached from behind them. Decedent's mother heard the train and called to decedent to stop, but she failed to heed, turned toward the track, put one foot on the rail and looked toward the train, and was unable to get off the track before she was struck. When decedent stepped on the track the whistle was sounded, the emergency brakes were applied and the train stopped, but not in time to avoid striking her. Defendant's demurrer to the evidence was sustained and judgment entered for it.

Held: That the demurrer to the evidence was properly sustained, for in no proper view of the case could plaintiff sustain a recovery.

Error to a judgment of the Circuit Court of Wise county. Hon. H. A. W. Skeen, judge presiding. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

John K. McCoy and Wm. H. Werth, for the plaintiff in error.

J. J. McLaughlin and R. P. Bruce, for the defendant in error.

GREGORY, J., delivered the opinion of the court.

The plaintiff in the court below who is now the plaintiff in error, instituted his action at law against the Clinchfield Railroad Company for damages for the wrongful death of Louise Ingle, his infant daughter, who was killed on the railroad track by an engine of a freight train operated by the defendant. After all of the evidence had been concluded, the defendant demurred to the evidence, the court sustained the demurrer, and entered a judgment for the defendant.

The considerations to be entertained by the court and the principles of law controlling the decision upon a demurrer to the evidence have been so clearly and frequently stated by this court that we will not undertake to reiterate them.

The railroad company maintained a flag stop, named and designated as "Bangor," to receive and discharge passengers. Addie Ingle, the mother, accompanied by her three children, Louise, four years old, Burton, six years and Calvin, six months of age, intended to go by passenger train from Bangor to Johnson City, Tennessee, to visit her parents. In the morning they entered upon the right of way of the railroad company a considerable distance from Bangor and proceeded in a path which ran about four feet from the end of the ties along the side of the tracks. This path had been used for a long time by pedestrians going to Bangor to board the trains. The railroad company, through its agents, knew of such use. They proceeded along the path and the mother carried the youngest child in her arms, while the other two children were walking a short distance ahead of her. Louise was about 150 feet ahead of her mother. Burton was between the mother and Louise. While they proceeded in this manner the mother heard the freight train approaching behind them. She testified that it was then between one-fourth and one-half a mile away. She said that it "was a long ways off." A sufficient distance intervened between the train and the mother and children for it to have been brought to a full stop before it reached them.

When the mother discovered the approaching train she called to Louise and told her to stop running, but she failed to heed. The mother then began to run with the baby in her...