Morton's Ex'r v. Southern Ry. Co

• Citation: 71 S.E. 561,112 Va. 398
• Parties: MORTON'S EX'R. v. SOUTHERN RY. CO.
• Decision Date: 08 June 1911
• Court: Virginia Supreme Court

112 Va. 398

71 S.E. 561

MORTON'S EX'R.

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

June 8, 1911.

1. Railroads (§ 320^*)—Precautions as to Persons at Crossing.

It is not the duty of an engineer to stop when he sees a person approaching the track at a crossing as he has the right to assume, in the absence of anything showing the contrary, that such a person will take reasonable precaution for his own safety, and not rush in front of a rapidly moving train.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1014-1016; Dec. Dig. § 320.*]

2. Railroads (§ 338*)—Persons at Crossing —Last Clear Chance.

Where there is nothing to show that an engineer knew, or could have known, in time to have stopped his train, that one on the track at a crossing would be unable to cross before the train struck him, the doctrine of the last clear chance has no application.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1096-1099; Dec. Dig. § 338.*]

3. Railroads (§ 351*)—Persons at Crossing —Instructions—Sufficiency.

In an action by the executor of one killed by a railroad train at a crossing, the instructions held to be sufficient, and to have fully and fairly submitted the case upon the evidence to the jury.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. § 351.*]

Error to Circuit Court, Campbell County.

Action by Charles S. Morton's executor against the Southern Railway Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

The following instructions were given by the court:

"(1) The court instructs the jury that the track of a railway company is of itself a proclamation of danger to a traveler, and that he must not only use his eyes and ears, looking and listening in both directions, but he must, when about to cross a track, look and listen, so as to make these acts reasonably effective. If such looking and listening does or would warn him of the near approach of a train, then it is his duty to keep off the track until the train has passed, and to go on the track under such circumstances is negligence, and he cannot recover.

"(2) The court instructs the jury that if they believe from the evidence that the engineer was guilty of negligence in failing to see Dr. Morton, or warn him of the approach of the train, or in failing to endeavor to stop or reduce the speed of the train after the engineer could by the exercise of due care have seen Dr. Morton's danger, and if they further believe from the evidence that Dr. Morton by the exercise of due care on his part would or should have discovered thenegligent omission of the engineer in time to have saved himself, the jury must find for the defendant.

"(3) The court instructs the jury that Dr. Morton, the plaintiff's testator, in going upon the tracks in front of the approaching train, was guilty of negligence, and in the absence of evidence that he could not have gotten off the track sooner, his negligence continued as long as he remained on the track, and until the train collided with him. Therefore, notwithstanding the engineer, also, may have been guilty of negligence in not seeing Dr. Morton, or in not sounding the whistle, or in not endeavoring to stop or reduce the speed of the train, the jury must nevertheless find for the defendant.

"(4) The court instructs the jury that if they believe from the evidence that the decedent, Charles S. Morton, could have stepped from the track and avoided collision with the train after the train had reached a point at which no effort on the part of the engineer could have prevented the collision, then the jury must find for the defendant, even though they believe from the evidence that the engineer might, by the previous exercise of due care, have discovered, in time to have prevented the collision, the said Morton's intention to cross the track in front of the train.

"(5) The court instructs the jury that if the engineer failed to see and warn Dr. Morton, and failed to endeavor to stop or reduce the speed of the train when by the exercise of due care he could or should have done so, and that Dr. Morton failed to see the approaching train when by the exercise of due care he could have done so, and prevented the collision, then the jury must find for the defendant.

"(6) The court instructs the jury that if Dr. Morton's death was due to the concurring negligence of himself and the defendant's servants in charge of the train, that is, to the negligence of both parties, Dr. Morton and the company, operating and in effect at the same time, they must find for the defendant.

"(7) The court instructs the jury that the duty of Dr. Morton to look out for his own safety was as great as the duty of the defendant to look out for him, and the court instructs the jury that the negligence of the defendant, if it was negligent, did not excuse Dr. Morton from the reciprocal duties he owed to care for his own safety, and that no negligence of the defendant would entitle the plaintiff to recover, unless it was the sole, proximate cause of the death of Dr. Morton."

The following instructions were requested by plaintiff, and refused:

"(A) The court instructs the jury that, although they may believe from the evidence that the defendant's engineer sounded the crossing signal at the proper point as he approached the crossing in question, this would not relieve the defendant of the duty of exercising ordinary care in keeping a reasonable lookout as its engine approached said crossing (should the jury believe from the evidence that it was a public highway crossing) in order to avoid injuring persons traveling thereon, and such failure on its part to exercise such care in keeping such lookout would be negligence.

"(B) The court instructs the jury that the law imposes upon a railway company and its agents in charge of its locomotive engines the duty of exercising ordinary care in keeping a reasonable lookout when such engine is approaching a public highway crossing, in order to avoid injury to persons passing across its tracks at such crossing, and a failure to exercise such care constitutes negligence.

"(C) The court instructs the jury that if they believe from the evidence that the plaintiff's testator went dangerously near to or upon the defendant's north-bound track under the conditions disclosed by the evidence in the case, thereby placing himself in a position of peril from defendant's engine and train approaching along said track from the south, he was guilty of negligence in so doing, and the plaintiff cannot recover in this action, unless the jury further believe from the evidence that the point at which the plaintiff's testator was crossing said track was a public highway crossing, and that, after he has so placed himself in a position of peril, the defendant's engineer in charge of said approaching engine could and would, by the exercise of ordinary care in keeping a reasonable lookout as the engine approached said crossing, have discovered plaintiff's testator's peril in time to have avoided striking him, and that the said engineer failed to exercise such care, and by reason of such failure ran upon and killed him, in which event the defendant would, notwithstanding the said negligence of plaintiff's testator, be liable for his death."

Lee & Kemp, for plaintiff in error.

Coleman, Easley & Coleman, for defendant in error.

CARDWELL, J. Charles S. Morton's executor brought this action against the Southern Railway Company to recover damages for the death of his testator, caused, it is alleged, by the negligence of the defendant company, and at the trial of the cause there was a verdict and judgment for the defendant company, to which judgment the plaintiff obtained this writ of error.

The deceased was killed on the 28th day of July, 1909, by a freight train at the crossing of defendant in error's track over a public highway at Lawyer's Station, in Campbell county, Va., in broad daylight, about 6 o'clock in the afternoon. While deceased was 77 years of age, according to the testimony of his son, the plaintiff in error, he had led "anextremely active life, " and his general health and mind were very good—"in rather splendid condition"—at the time of the accident,...