Johnson's Adm'x v. Richmond & D. R. Co
| Citation | 86 Va. 975,11 S.E. 829 |
| Court | Supreme Court of Virginia |
| Decision Date | 19 June 1890 |
| Parties | Johnson's Adm'x. v. Richmond & D. R. Co. |
Master and Servant—Limiting Liability for Negligence.
1. A railroad company cannot, by contract, exempt itself from liability for personal injuries caused by the negligence of its servants.
2. In an action for death caused by a passing railroad train to an employe of a firm of contractors engaged in removing rock and dirt in order to straighten the track, there was testimony tending to show that the company had promised that its trains should not pass the point at a speed of more than six miles an hour. Held, error to refuse a charge that if the jury believed such promise was made, and that deceased's death was caused by a violation thereof, without fault on his part, they should find for the plaintiff.
Error to circuit court of the city of Richmond.
This was an action in the circuit court of the city of Richmond by the administratrix of James Johnson, deceased, against the Richmond & Danville Railroad Company, to recover damages for the death of the plaintiff's intestate, which was claimed to have been caused by the negligence of the defendant corporation. The deceased was a member of a firm of quarry-men doing business under the style of Hutcheon, Johnson & Donald. On the 22d of May, 1885, the firm entered into an agreement with the railroad company for the removal of a certain granite bluff on the company's right of way, at a point about three miles south of Richmond, in the county of Chesterfield, for the purpose of straightening its track at that point. Among other things, it was stipulated by the company that it should "In no way be held responsible for any injuries to, or death of, any of the members of the said firm, or of any of its agents and employes, sustained from said work, should such death or injury occur from any cause whatsoever." There was evidence at the trial tending to prove that after the agreement was executed there was, if not a positive contract, at least an understanding between the parties that the trains of the company, in passing the bluff, would be run at a rate of speed not exceeding six miles an hour, and it was proved that an order to that effect was given by the proper officers of the company. There was also evidence tending to prove that when the accident occurred, which caused the death of the plaintiff's intestate, the train by which he was fatally injured was running at a rate of speed not less than 25 miles an hour, though upon this point the evidence was conflicting. In the progress of the work the dirt and rubbish from the excavation was removed in wheelbarrows down a slanting tramway from the side of the bluff to the main track of the railroad, which ran near the foot of the bluff; thence, on a plank placed across the track between the rails, which rested on two blocks, one at either end, so as to make the plank level with the rails, it was wheeled across the track. On the day of the accident, as one of the employes of the firm was coming down the tramway with a wheelbarrow heavily loaded with dirt, he suddenly heard the deceased calling his name. He looked around, he says, and saw the deceased running up the track "with the train right behind him." It was a passenger train going south, and was behind time. The witness says he was unable to stop the wheelbarrow until it had gotten on the track, and then was unable to pull it back before it was struck by the engine. The deceased rushed forward to remove the plank across the track, as the custom was upon the approach of the trains, and succeeded in removing it before the train got there. But almost instantly the wheelbarrow was struck by the engine, and hurled against his stomach with such force that he died from the injuries so inflicted the next day. After the evidence on both sides had been closed, four instructions (for which see opinion) were offered by the plaintiff, all of which the court refused to give, and in lieu thereof gave the following: "If the jury shall believe from...
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