Johnson's Adm'r v. Chesapeake &

• Decision Date: 14 March 1895
• Citation: 91 Va. 171,21 S.E. 238
• Court: Virginia Supreme Court
• Parties: JOHNSON'S ADM'R . v. CHESAPEAKE & O. RY. CO.1

21 S.E. 238

91 Va. 171

JOHNSON'S ADM'R .

v. CHESAPEAKE &O. RY. CO.¹

Supreme Court of Appeals of Virginia.

March 14, 1895.

Demurrer to Evidence—Effect of—Practice— Negligence—Accidents at Railroad Crossings.

1. Either party may demur to the evidence, unless the evidence is plainly against him, or the court doubts what facts should be inferred from the evidence demurred to.

2. Where a party has a right to demur to the evidence, it is the duty of the court to compel the other party to join in the demurrer.

3. By demurring to evidence the demurrant admits the truth of the adversary's evidence, and waives all his own evidence conflicting therewith.

4. It is not negligence to run a freight train through a village of 200 inhabitants at 20 miles per hour, where it is not shown that the train was improperly equipped with brakes and brake-men.

5. Where decedent was killed by a train while attempting, without looking or listening for a train, to cross the track at a place where people were in the known habit of crossing, and he was not seen by those in charge of the engine until it was too late to avoid the accident, the company is not liable, though no signal was given for the crossing, the whistle having been blown before for a station.

Error to circuit court, Albemarle county.

Action by Wiley B. Johnson's administrator against the Chesapeake & Ohio Railway Company for causing the death of decedent. Defendant had judgment, and plaintiff brings error. Affirmed.

Camm Patteson and S. S. P. Patteson, for plaintiff in error.

Wm. J. Robertson, Thos. S. Martin, H. T. Wickham, and Henry Taylor, Jr., for defendant in error.

RIELY, J. Wiley B. Johnson was killed on the 30th day of October, 1893, while on the track of the Chesapeake & Ohio Railway Company, by one of its freight trains, and this suit was brought by his administrator to recover damages from the railway company for the death of Johnson. At the trial, after the evidence on both sides was closed, the defendant demurred to the evidence, and the court compelled the plaintiff, against his protest, to join in the demurrer. The amount of damages was thereupon inquired of by the jury, which found a verdict for the plaintiff, and assessed his damages at $2,900, subject to the opinion of the court on the demurrer to the evidence. The court sustained the demurrer, and gave judgment in favor of the defendant. To this judgment a writ of error and supersedeas was awarded by one of the judges of this court.

The first question presented for review was the action of the court in compelling the plaintiff to join in the demurrer to the evidence.' It was earnestly contended by the counsel for the plaintiff in error, both in their printed and oral arguments, that the court erred in compelling the plaintiff to join in the demurrer, and thus take away from the jury, the proper triers of facts, the question of negligence, which was the result of this proceeding. The propriety and validity of the practice of demurring to the evidence is too well settled in Virginia, and has been too often approved by this court, to be now seriously questioned. It was elaborately discussed and maturely considered in Trout v. Railroad Co., 23 Grat. 619, where Judge Moucure, the president of the court, reviewed the cases in Virginia on this subject, sustained the practice, and defined the rules which govern it. It was there held that either party has the right to demur to the evidence, except where the evidence is plainly against him, or the court doubts what facts should be reasonably inferred from the evidence demurred to; and where a party has the right to demur it is the duty of the court to compel the other party to join in the demurrer. The suit of Trout v. Railroad Co., supra, was brought to recover damages for the negligent killing of the stock of the plaintiff by the railroad company, and, like this case, the ground of the action was the negligence of the defendant. It was nevertheless held that this was no reason why a party should not be permitted to demur to the evidence, and that the fact of negligence constituted no exception to the general rule. That case has been repeatedly followed since, and the practice of demurring to the evidence and compelling the demurree to join in the demurrer, unless the case is within one of the two exceptions to the gen-eral rule, is now firmly fixed in the law. Clark's Adm'r v. Railroad Co., 78 Va. 709, 713. The ease under review falls under the general rule and not under either of the exceptions to it, and the court did not err in compelling the plaintiff in error to join in the demurrer.

This brings us to the consideration of the demurrer to the evidence, and the review of the Judgment given thereon by the court below. The rule applicable thereto is well settled and familiar. By the demurrer the party demurring is considered as admitting the truth of his adversary's evidence, and all just inferences which can be properly drawn therefrom by a jury, and as waiving all of his own evidence which conflicts with that of his adversary, and all inferences from his own evidence (although not in conflict with his adversary's) which do not necessarily result therefrom. 4 Minor, Inst. pt. 1, p. 921; 1 Bart. Law Pr. pp. 676-679; Trout v. Railroad Co., 23 Grat. 619; and Railroad Co. v. Anderson's Adm'r, 31 Grat. 812. The evidence shows that Johnson was struck and killed between 9 and 10 o'clock in the morning, on the track of the Chesapeake & Ohio Railway Company, by one of its freight trains, about 15 feet from the place where the public highway crosses the track of the railroad at the depot in the village of Howardsville, in Albemarle county, and where persons on foot were in the habit of crossing the railroad without objection from the company. The track at that place runs nearly east and west, and the train was going east It was composed, besides the engine and tender, of 45 loaded freight cars and a caboose car. Thirty-two of the cars were equipped with air brakes, which were in good order and working. Ten of the cars were without air brakes, and the four others had air brakes that were not working. The evidence shows that the employes in charge of the train were sufficient to handle it, and that the air brakes on the 32 out of the 46 cars were all that were necessary to give perfect and easy control of the train. It was running on a regular schedule, but behind time. Its speed was variously estimated by the witnesses, but claimed by counsel for plaintiff in their brief to be running from 17 to 20 miles per hour, which was less than the maximum of 24 miles per hour permitted under the rules of the company. It was proved that freight trains habitually pass Howardsville without stopping, running at as high a rate of speed as this was running, and that this train was to pass there without stopping. As was customary, the whistle for the station was blown at the whistling post, about half a mile west of the station; but neither the whistle was again heard by any of the witnesses of the plaintiff, nor was the car bell heard by them to ring as the train approached the public crossing and the station at Howardsville, before Johnson was struck; while, on the oth er hand, the officers and men in charge of the train testified that the whistle was not only blown for the station, as was usual, but that, after coming in sight of the signals displayed from the telegraph office, the whistle again gave two sharp blasts to indicate that the track was clear, so that the train could continue on. At the time the whistle was blown for the station, Johnson was standing at the gate of his son-in-law, S. S. Bugg, where he had been talking with Eldridge Turner, who walked to the south side of the track, and engaged in conversation with Dr. Nash and Joe P. Noel, two of the witnesses for the plaintiff. Near Johnson and Turner, where they were talking, was the buggy of a Mr. Pulling, with a young man sitting in it. Pulling was on the south side of the track, and when he heard the whistle he called to the young man to drive to where he was, that he might help him to hold the horse while the train passed. The young man drove the horse and buggy to where Pulling was, and Johnson remained standing at the gate. Bugg's gate was, according to measurement, 105 feet north of the track of the railroad where the public road crosses it, and from the gate to the crossing the view of the track and of any train moving upon it from the west was wholly unobstructed for 265 yards, so that by the use of his faculties Johnson could have clearly seen the train as it approached the crossing, and the engineer and fireman could have seen him for the same distance, after he came within 15 or 20 feet of the track, if they were at their posts, and performing their duties. After Johnson was seen standing at Bugg's gate, his movements seem not to have been observed by any one until the train was approaching the public crossing and station, when he was seen walking slowly in the direction of the track. He continued to walk on towards the track, and stepped upon it, as if to go across it. He was then in front of the train as It approached the crossing, and before he could clear the track he was struck, and instantly killed. These were the circumstances, so far as they are material, under which he met his death, and the inquiry is whether the defendant is liable therefor in damages. If the death of Johnson was caused solely by the negligence of the defendant, there can be no doubt of the right of the plaintiff to recover damages therefor. If, however,...