Marshall's Adm'x v. Valley R. Co

• Decision Date: 23 November 1899
• Citation: 99 Va. 798,97 Va. 653,34 S.E. 455
• Parties: MARSHALL'S ADM'X. v. VALLEY R. CO.
• Court: Virginia Supreme Court

34 S.E. 455

97 Va. 653

99 Va. 798

MARSHALL'S ADM'X.

v.VALLEY R. CO.

Supreme Court of Appeals of Virginia.

Nov. 23, 1899.

RAILROADS—DEFECTIVE CROSSING—NEGLIGENCE—EVIDENCE—INSTRUCTIONS —VERDICT—REVIEW.

1. Instructions requested by plaintiff and refused, and instructions given for defendant and excepted to by plaintiff, at a trial resulting in

favor of plaintiff, cannot be called in question by either party on appeal from a judgment for defendant rendered on a retrial thereof.

2. The verdict of a jury is entitled to great respect, and should not be disturbed by the trial court unless plainly against the weight of evidence.

3. Defendant was replacing a bridge at a crossing of a county road over its tracks, and in the meantime opened up another passageway for the accommodation of the public, leading some 200 yards, along the brink of the cut, south of the bridge, to where the railroad could be crossed at grade. The end of the bridge was blocked with material, which also constituted a barricade for a distance of 40 or 50 feet along the brink of the cut. There was also a guy rope running from the top of a derrick at the bridge to the ground some 100 feet south of the bridge, which, at the end of the barricade, was high enough for a person on horseback to pass under without touching it. The space between the guy rope and the brink of the cut was several feet wide, but at one point further from the bridge was only two feet wide. Plaintiff's decedent was traveling on horseback on the highway leading to this bridge, on a very dark night, and on the next morning was found lying upon the railroad track, about 80 feet to the south of the bridge, in a dying condition. His horse was upon the embankment in the temporary roadway, not far from the bridge. It was shown that deceased had a general acquaintance with the situation, but was not accurately informed of the position of the obstructions interposed by defendant. Held, that a finding that the injury to plaintiff's intestate was due to failure of the defendant company to exercise reasonable care is sustained by the evidence.

4. Held, also, that a finding that there was no contributory negligence on the part of deceased is sustained by the evidence.

5. Where a railroad, in making necessary repairs to a highway bridge, opened a temporary roadway along its right of way for the accommodation of the public, it is its duty to exercise reasonable care in making the temporary roadway reasonably safe.

Error to circuit court, Augusta county.

Action by William H. Marshall's administratrix against the Valley Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

Curry & Glenn and H. St. Geo. Tucker, for plaintiff in error.

J., J. L. & R. Bumgardner, for defendant in error.

KEITH, P. This action was brought by Marshall's administratrix in the circuit court of Augusta county in April, 1898, against the Valley Railroad Company, for the recovery of damages by reason of the death of her intestate, William H. Marshall, which she alleges was caused by the negligence of the defendant company.

At the May term, 1898, the case was tried by a jury, which rendered a verdict in favor of the plaintiff for $2,700, which, upon the motion of the defendant, was set aside, as being contrary to the law and the evidence. At the November term the case was again tried, and a verdict rendered in favor of the defendant, upon which the court entered judgment.

At the first trial the plaintiff in error took six bills of exceptions to the various rulings of the court, which we are now to consider. Some of these exceptions are to the refusal of the court to give instructions asked for by the plaintiff; others are to the ruling of the court in giving instructions asked for by the defendant and objected to by the plaintiff.

As the plaintiff in error secured a verdict at the first trial, upon which she is now asking this court to enter judgment in her favor, the instructions asked for by her and refused by the court need not be considered; nor is it necessary to pass upon the instructions given for the defendant. Neither of the parties to this controversy can call in question the instruction given at that trial, —the plaintiff in error because she secured a verdict upon which she is now asking a judgment; the defendant in error because a new trial was granted, and a subsequent judgment rendered in its favor.

The only question for our consideration now is upon the propriety of the court's action in setting aside the first verdict as being contrary to the law and the evidence.

It appears from the record that the county road leading from the Greenville road to Christian's creek, in Augusta county, crosses the right of way of the Valley Railroad at a point where there is a cut from 40 to 50 feet deep. There was a bridge over this cut, which it was the duty of the defendant company to maintain and keep in proper condition and repair; and in the performance of this duty it undertook to remove the wooden bridge, and replace it with an iron structure, and for this purpose tore up the old bridge. The railroad runs at this point north and south, and the county road crosses it east and west. At the west side of the bridge, going south, the defendant company opened a passageway for the accommodation of the public while the new bridge was in process of construction. A person approaching from the west, when within a few feet of the end of the bridge, would turn short to the right, pass along this temporary roadway, with a wire fence upon his right and the cut upon his left, for about 200 yards, to a point where the railroad could be crossed at grade. The end of the bridge was blocked with material taken from the old bridge, and a portion of it was piled for a few feet to the south, and then came a long tool box, which altogether constituted a barricade at the west end of the bridge, and to the south along the brink of the cut, for a distance of from 40 to 50 feet. Immediately to the north of the bridge, and near the embankment, stood a derrick, used by the bridge builders about their work. From this derrick, running south, was a guy rope, fastened to a post let into the earth at a distance of about 100 feet to the south of the bridge. At the end of the tool box this guy rope was high enough from the ground to permit a person on horseback to pass underneath it without touching it, and from that point sloped down until it touched the ground at the guy post. At the west end of the bridge this guy rope was about 8 feet fromthe brink of the cut, but at a point a few feet from the guy post, where the rod was only about 18 inches above the ground, there was a break in...