Kimball v. Friend's Adm'x

• Decision Date: 16 September 1897
• Citation: Kimball v. Friend's Adm'x, 27 S.E. 901, 95 Va. 125 (1897)
• Parties: KIMBALL et al. v. FRIEND'S ADM'X.
• Court: Virginia Supreme Court

27 S.E. 901

95 Va. 125

KIMBALL et al.

v.FRIEND'S ADM'X.

Supreme Court of Appeals of Virginia.

Sept. 16, 1897.

Railroad Crossing Accident — Contributory Negligence—Instructions—Waiver of Objection.

1.Objection to an instruction on the ground that there was no evidence of the facts on which it was based is waived by a party asking that the jury be directed to render a certain verdict in case of certain findings, unless said facts be also found.

2.In case of collision at a crossing between an engine and a bicycle, resulting in death of the rider of the latter, the question of his contributory negligence is for the jury, though it appears that he was riding about as fast as an ordinary horse trots, and that he did not stop as he approached the crossing; no one having testified whether he did or did not look or listen, the approach along the highway for a distance of 300 feet from the crossing being through a cut with sides 10 to 15 feet high, so that one had to be within 25 feet of the crossing to see an engine 21 feet from the crossing, no notice having been given of the approaching engine, though an electric gong was fixed on the track to ring while a train was within 300 yards of the crossing, and persons who were within a few feet of the crossing having testified that they did not hear the engine till just as it struck deceased.

Keith, P., and Cardwell, J., dissenting.

Error from hustings court of Roanoke.

Action by Josiah Friend's administratrix against F. J. Kimball and Henry Fink, receivers of the Norfolk & Western Railroad Company.Judgment for plaintiff.Defendants bring error.Affirmed.

Watts, Robertson & Robertson, for plaintiffs in error.

H.St, Geo. Tucker and Hansbrough & Hall, for defendant in error.

BUCHANAN, J.This is a writ of error to a Judgment against the receivers of the Norfolk & Western Railroad Company, rendered in an action to recover damages for the negligent killing of the plaintiff's intestate.

The grounds relied on for a reversal of the judgment are that the jury were misdirected, and that their verdict is contrary to the law and the evidence.

The defendants moved the court to give five instructions, all of which were refused, and five others given in lieu thereof by the court.This action of the court was excepted to, but It is admitted in the petition for the writ of error that the substituted instructions were substantially the same as those asked for by the defendants, and that they were not prejudiced thereby.

The court gave nine instructions upon the motion of the plaintiff, all of which were objected to.

The objection made to the first instruction is that there was no evidence upon which to base it.There was evidence tending to show that the view of the railroad track on either side of the crossing was obstructed by the sides of the cut to within a few feet of the track.One witness stated that the mouth or end of the cut was within two yards of the railroad.Another witness, who seems to have made his measurement in the presence of the jury, tes-tified that at the south side of the cut the distance from the center of the railroad track to the "high ground" on the side of the cut was only 12 feet.This evidence tended to show that the view of the railroad track on either side of the crossing was practically shut off by the sides of the cut to a traveler coming from the west until he got to the crossing.An instruction, therefore, which informed the jury that a traveler was not required to look where he could not see, was proper; but, to prevent any misconception by the jury on the subject of his duty in approaching a railroad crossing, the court directed the jury expressly to consider, with this instruction, instructions Nos. 1 and 3, given by the court for the defendants.

By instruction No. 1 the jury were told that "if they believe from the evidence that the said engine approached said crossing without blowing a whistle for said crossing or ringing Its bell, and if the gong at the said crossing failed to ring, and that such conduct was negligence on the part of the railroad company, and further believe that the said Friend came out of the cut, towards the crossing, at a fast rate of speed, on a bicycle, that he did not look nor listen, and that the said bicycle and the said locomotive came into a collision at said crossing, that the said Friend was guilty of such contributory negligence as to prevent recovery, and a verdict must be found for the defendant receivers, unless after the defendants saw, or could, by the use of ordinary care, have seen, his peril, they could afterwards, by the use of ordinary care, have prevented the accident."

By instruction No. 3they were told that "while it is the duty of the defendant receivers to give notice of the approach of its trains to a crossing, by the ringing of its bell, the blowing of the whistle, or otherwise, and that its failure to give such notice is negligence, that there are also reciprocal duties imposed on the plaintiff's intestate; that a traveler cannot go upon the track, even at a public crossing, without exercising ordinary care and caution; that the track itself is a proclamation of danger, and that it is the duty of any one going upon it to use his eyes and ears.He should both look in either direction from which the train could come, and listen to ascertain if it is approaching, and, if his faculties warn him of the near approach of a train, it is his duty to keep off the track; and that if a traveler fails to so look and listen, as duty requires of him, and attempts to cross the track in front of a moving train, and is caught before he can get across, and killed, his own act and his own negligence so contributed to the injury that a recovery therefor cannot be sustained, and the jury must find for the defendant."

By the third instruction given for the plaintiff the jury were instructed that if the defendants could, in the result, by the exercise of ordinary care and diligence, have avoided the accident, the negligence of the plaintiff's intestate would not excuse the railroad company.This instruction is objected to, on the ground that there was no evidence tending to show that the accident could have been avoided after the peril of the deceased was discovered.

There is some evidence tending to show that the engineer in charge of the engine expected, when he reached the crossing, to stop there, for the purpose of taking on hands to carry them out to their place of work, and that the engine was being run with this view until it came very near the crossing.The contention of the plaintiff is that if those in charge of the engine, running as it was, had exercised ordinary care after they saw or might have seen the peril of the deceased, the accident might have been avoided.

Not only did the plaintiff and the court think that there was evidence tending to prove the facts upon which that instruction was based, but the defendants admitted (and are now estopped from denying) that there was such evidence by asking the court, in their fourth instruction, to tell the jury that, if they believed certain facts, they must find for the defendants, "unless they further believe that, after perceiving the negligence of the plaintiff's intestate, they could have avoided the effect of such negligence by the exercise of ordinary care."

Without discussing specially the objections made to other instructions, it is sufficient to say that, in our opinion, the case was submitted to the jury upon instructions eminently favorable to the defendants, and we do not think that they have any just ground of complaint to them as a whole.

The next question is, was the verdict of the jury contrary to the evidence?

There is evidence tending to show: That the deceased was about 45 years of age, a resident of Roanoke city, and employed as a workman at the Bridge Works, In the eastern part of the city, where he had been engaged for about two weeks.In going to and from his work, he usually traveledon a bicycle, and crossed the Shenandoah Branch of the Norfolk & Western Railroad, at what is known as the "Bridge Works Crossing, " which is in the city, and much traveled.The approach to this crossing, for a distance of 300 feet immediately west of it, Is over a narrow dirt road or street, about 15 feet wide, running through a cut whose sides are from 10 to 15 feet high, and which extend to within a few feet of the railroad track, rendering the crossing to travelers from the west very dangerous.On account of its dangerous character, the railroad company, some years before, had erected immediately east of the crossing, on the north side of the highway, an electric gong or bell, to warn travelers of approaching trains.This gong or bell is connected with the railroad track in some way (not clearly shown), so that, when trains or engines are approaching from either direction, it commences to sound or ring at a distance of about 300 yards from the crossing.That the deceased approached the crossing on the morning of the accident through the narrow cut upon his bicycle, goingabout as fast as an ordinary horse trots; that as he reached the crossing he was struck by an engine of the defendants without cars running at about eight miles an hour, and carried upon its pilot from twenty to forty feet, thrown from it and killed.That his bicycle, which was without brakes, was made by himself, and that he was not a very expert rider.That the railroad track, In the direction from which the engine came, could be seen from the center of the highway a distance of 21 feet when within 25 feet of the west rail, 55 feet when 10 feet nearer, and 700 feet (650 of which was beyond the curve in the track) when within 9 1/2 feet of the rail.That the sides of the cut extended down very close to the railroad track.That no notice was given of the approaching train, either by sounding the gong, ringing the bell, blowing the whistle, or otherwise.That two other travelers, walking...