Lynchburg Traction & Light Co v. Guill

• Decision Date: 13 June 1907
• Citation: 107 Va. 86,57 S.E. 644
• Court: Virginia Supreme Court
• Parties: LYNCHBURG TRACTION & LIGHT CO. v. GUILL.

57 S.E. 644

107 Va. 86

LYNCHBURG TRACTION & LIGHT CO.

v.GUILL.

Supreme Court of Appeals of Virginia.

June 13, 1907.

1. Street Railroads—Injuries to Travelers—Negligence—Pleading.

A complaint against a street railroad company for injuries to a traveler, alleging that defendant so carelessly, etc., managed its cars that by reason of its negligence one of them ran against plaintiff, who was then on the highway, whereupon, etc., was fatally defective for failure to allege the facts from which the negligence arose.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44. Street Railways, § 224; vol. 37, Negligence, §§ 182-184.]

2. Same — Public Highway — Establishment.

Where plaintiff was injured in a collision with a street car in a highway outside the limits of a city, whether the place where the injury occurred was in fact a public highway must be determined by the law with reference to the establishment of public roads in the country, and not with respect to the dedication and opening of streets in a city.

3. Dedication—Acceptance.

The acceptance of the dedication of a city street may be shown by the acts of the municipality's officers.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 70, 83.]

4. Same—Country Highways.

The acceptance of a highway in the country, so as to impose on the public the burden of keeping it in order, must appear by matter of record, either by a formal acceptance or a showing that the county court has laid off a road before used into precincts, or appointed an overseer or surveyor for it, thereby claiming the road for the benefit of the public.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 70, 75, 83.]

Error to Circuit Court, Lynchburg County.

Action by John Dudley Guill, by John Davis Guill, his father and next friend, against the Lynchburg Traction & Light Company. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

Horsley, Kemp & Easley, for plaintiff in error.

Don P. Halsey, for defendant in error.

KEITH, P. This action was instituted In the circuit court of Campbell county by Guill, by his father and next friend, against the Lynchburg Traction & Light Company, to recover damages for an injury.

The declaration contains four counts, and there was a demurrer to it and to each count thereof, which the circuit court over ruled, and a judgment was rendered upon the verdict of a jury in favor of the plaintiff for the sum of $5,000; and the case is before us for review of certain rulings made during the progress of the trial.

It is unnecessary to consider the second and third counts of the declaration, as the circuit court instructed the jury that there could be no recovery upon them.

The first error assigned is to the judgment of the court overruling the demurrer to the first count of the declaration.

It states that the defendant was the owner and operator of a certain railroad, lying in part within the county of Campbell, and along one of the public streets, roads, and highways of said county; that the railroad was being operated by means of electricity; and that the defendant so carelessly, recklessly, negligently, and improperly managed its cars that by reason of its carelessness and negligence one of them ran and struck with great force upon and against the plaintiff, who was then upon said highway, whereby his left arm was greatly bruised, broken, and mangled, so that it became necessary to amputate it above the elbow.

If, as averred in the declaration, the plaintiff was upon a public highway, his right upon it was equal to that of the railroad company, and it was bound to use the degree of care proper to that situation; and if it failed to do so, and as a result of its negligence the injury was inflicted upon the plaintiff, a case for the recovery of damages was made out. But negligence is a conclusion of law from facts sufficiently pleaded. The office of a declaration is to inform the defendant of the case which it has to meet, so that it may have a reasonable opportunity to prepare and make its defense. It is not enough to say that the plaintiff was injured and that the injury resulted from the careless and negligent conduct of the defendant; but the facts relied upon to establish the negligence for which the defendant is to be held liable must be stated with reasonable certainty.

In Hortenstein v. Va. Carolina Ry. Co., 102 Va. 914. 47 S. E. 996, this court, after a full review of the authorities, disapproved the case of B. & O. R. Co. v. Sherman's Adm'r, 30 Grat. 602, and approved what was said in B. & O. R. Co. v. Whittington's Adm'r, 30 Grat. 805, stating the law to be that, "in an action of tort founded on the negligence of the defendant, the declaration must allege what duty was owing by the defendant to the plaintiff, the failure to discharge which caused the injury complainedof, and its breach, or make such averments of facts as will show the existence of the duty and its breach. These averments must be made directly and positively, and not merely by way of recital. * * * The object of a declaration is to apprise the adverse party of the ground of complaint, and in actions of tort the declaration must state sufficient facts to enable the court to say, upon demurrer, whether, if the facts stated are proved, the plaintiff is entitled to recover. A statement of a cause of action in general terms, and general averments of negligence of the defendant, which fall short of this, are not sufficient."

In Southern Ry. Co. v. Hansbrough, 105 Va. 527, 54 S. E. 17, the court held it to be insufficient upon demurrer, because, while it alleged that the defendant's employes carelessly, negligently, and unskillfully, with great rapidity and with great force and violence, ran one of its engines upon and against the plaintiff, thereby inflicting the injury complained of, it did not point out in what manner the defendant was negligent, nor what duty was owing from the defendant to the plaintiff, the breach of which was the cause of the alleged injury. The declaration in that case was less open to criticism, indeed, than that under consideration; for in that case it appears that the injury occurred upon the street of a city over which the train that inflicted the injury was being run at a high rate of speed; but it was considered that the mere rate of speed was not in itself per se negligence, there being no averment in that count that there was any ordinance regulating the speed of trains. The principle announced in Hortenstein's Case, supra, was approved in Lane Bros. v. Seakford, 100 Va. ——, 55 S. E. 55G, Hot Springs Lumber Co. v. Revercomb, 106 Va. ——, 55 S. E. 580, N. & W. Ry. Co. v. Wood, 99 Va. 156, 37 S. E. 846, and N. & W. Ry. Co. v. Stegall's Adm'x, 105 Va. 538, 54 S. E. 19.

Blue Ridge Light & Power Co. v. Tutwiler, 106 Va.——, 55 S. E. 539, considered by itself, apart from decisions which show that the court had no purpose in that case to depart from the principle of the Hortenstein Case, supra, or to impair or diminish its authority, might appear somewhat to relax the rule. The facts in that case constituting negligence do not, it may be conceded, sufficiently appear; but there was no intention upon the part of the learned judge who wrote that opinion, nor of those who approved it, to change or limit the rule announced in the Hortenstein Case. The conclusion reached in Blue Ridge Light & Power Co. v. Tutwiler, in favor of the plaintiff in error, was upon the merits of the case so plainly right that the demurrer, for that reason, may not have been scrutinized with the same caution that would have been exercised had the decision of the case ultimately rested upon the demurrer.

We are of opinion that the demurrer to the first count of the...