N.Y. v. Kellam's Adm'r

• Decision Date: 10 November 1887
• Citation: 83 Va. 851,3 S.E. 703
• Court: Virginia Supreme Court
• Parties: New York, P. & N. R. Co. v. Kellam's Adm'r.

3 S.E. 703

83 Va. 851

New York, P. & N. R. Co.

v.Kellam's Adm'r.

Supreme Court of Appeals of Virginia.

November 10, 1887.

1. Trespass—Trespass on the Case—Abolition of Distinction.

Code Va. c. 145, § 6, provides that in any case in which an action of trespass will lie there may be instituted an action of trespass on the case. A writ in an action commanded the sheriif to summon the defendant to answer the plaintiff of a plea of trespass on the case, while the declaration was in form appropriate to an action of trespass. Held, that the material difference between the two forms of action has been abolished, and a motion to set aside the declaration was properly denied.

2. Railroad Companies—Negligence—Crossing Tracks.

Plaintiff's intestate was riding in his carriage with the top up. When near a railroad crossing of defendant he slowed his horse to a walk. The track at that point was straight, and the deceased at 25 yards from the track, and until reaching it, had a view of it for miles. He did not look out until the horse was on the track. He then attempted to hurry the horse across in front of the train, but failed, and was killed. The testimony as to the whistling was conflicting. Held, that the deceased was guilty of such contributory negligence that the plaintiff could not recover.¹

3. Same.

Where the deceased, in approaching a railroad, neglected to look out from his covered carriage until the horse was on the track, an instruction that no failure on the part of the railroad company to do its duty could excuse the failure of deceased to use his sense of sight and hearing was proper.

4. Same—Negligence—Rate of Speed.

An instruction that the mere speed of a train, and the fact that it is behindhand, are not per se evidences of negligence, is proper.

5. Witness—Impeachment—Testimony at Coroner's Inquest.

Certain witnesses of defendant were asked whether they had made certain statements at the coroner's inquest, which they each denied. Plaintiff introduced, in rebuttal, their depositions taken at the inquest. Held, that the evidence thus introduced was properly admitted.

Browne & Garrison, for plaintiff in error. Gunter & Blaekstone, for defendant in error.

Richardson, J. This is a writ of error to a judgment of the circuit court of Accomack county rendered on the——day of——, 188—, in an action at law wherein Kellam's administrator, the defendant in error here, was plaintiff, and the New York, Philadelphia & Norfolk Railroad Company, the plaintiff in error here, was defendant. The action was brought under section 7, c. 145, Code 1873, to recover damages for the alleged negligent killing of the plaintiff's intestate by the defendant company.

The declaration contains but one count, in which it is alleged that on thetwenty-first day of December, 1885, the defendant was possessed of certain engines and cars, used and employed in carrying passengers and freight along the line of its railway in Accomack county, state of Virginia, and that on said day the plaintiff's intestate, N. Judson Kellam, in pursuit of his lawful business, was driving along a public road of said county, leading from Pungo-teague to Pair Oaks, and attempted to cross the track of said company at a crossing known as the "Camp-Meeting Crossing, " in the Pungoteague magisterial district of said county, where said railroad track crosses said public road; and the said defendant did, on the date last aforesaid, on its track at the crossing aforesaid, so carelessly, negligently, and with great force and violence run and drive its engine and coaches upon and against the said N. Judson Kellam, there then being, and thereby then and there, with said engine and coaches, did so greatly wound said N. Judson Kellam, that he then and there died, and his death was caused by said wrongful act, neglect, and default of said railroad company; wherefore, etc. There was a demurrer to the declaration, which the circuit court overruled, and thereupon the defendant pleaded "not guilty, " upon which plea issue was joined. At the trial the jury rendered a verdict for the plaintiff, and assessed the damages at $2,500. The defendant thereupon moved for a new trial, on the ground that the verdict was contrary to the evidence, and because the court had misdirected the jury; but the motion was overruled, and the defendant excepted. The defendant then moved the court to set aside the declaration, and all the proceedings under it, as inappropriate to the form of action instituted, which motion was overruled. A motion was then made by the defendant for a repleader, on the ground that the issue joined was "not in the action brought, and was immaterial to the action, " which motion was also overruled. A motion in arrest of judgment was also made and overruled; "and the defendant thereupon craved oyer of the writ, which was read to him, * * * and again moved in arrest of judgment for errors apparent on the face of the record, which motion was refused." The writ commands the sheriff to summon the defendant company to answer the plaintiff of a plea of trespass on the case; whereas the declaration purports to be in, and is in, form appropriate to an action of trespass. The court gave judgment according to the finding of the jury, whereupon the defendant obtained a writ of error and supersedeas.

1. The first assignment of error is that the circuit court refused to grant the defendant's motion to set aside the declaration, and all the subsequent proceedings, as being inappropriate to the action brought. This assignment is clearly without merit. The statute provides that, "in any case in which an action of trespass will lie, there may be instituted an action of trespass on the case." Code 1873, c. 145, § 6. This provision of the statute was construed in Parsons v. Harper, 16 Grat. 64, and in Womack v. Circle, 29 Grat. 192, in both of which cases it was held that the intention of the legislature in passing the statute was "to remove the difficulties at common law growing out of the nice distinctions between the cases in which trespass was the proper action, and those in which the remedy was case, and to abolish, in effect, the distinction between these different causes of action in a declaration in case." The action in both of these cases was trespass on the case, and in each case counts in trespass were united in the declaration with counts in case. This, the court said, would have been a fatal defect on demurrer at common law, but it was held to be unobjectionable under the provisions of the statute above quoted. And we perceive no distinction, upon principle, between those cases and the case at bar; for if one or any greater number of counts in trespass may, under the statute, be joined in the same declaration with the counts in case, it is because, as the court said in the cases referred to, the material distinctions between the two forms of action, as they existed at common law, have been abolished, at least where the action is in case. In other words, the counts in trespass are in such ease treated as statutory counts in case; and sohere, the writ being in case, the declaration, which contains a single count, may with the same propriety be treated as a declaration in case, and the circuit court rightly so held.

2. We proceed, then, to consider the case on its merits. The rule is that an action is not maintainable for injuries to which the injured party has by his own negligence contributed. Hence, in a case like the present, negligence being the gist of the action, the question usually arises whether there has been such contributory negligence on the part of the plaintiff or his decedent as to prevent a recovery. There is indeed an important qualification of the general rule, which was adverted to by this court in Railroad Co. v. Anderson's Adm'r, 31 Grat. 812, and also in Dun v. Railroad Co., 78 Va. 645; namely, that mere negligence, or want of ordinary care and caution, does not disentitle the plaintiff to recover, unless it be such that but for that negligence the misfortune complained of could not have happened, nor if the defendant might, after discovering the negligence of the other party, have prevented the mischief by the exercise of due care.

In the decisions of this court above referred to the qualification of the rule was stated in the language of the opinion in the leading case of Tuff v. War-man, 5 C. B. (N. S.) 573, and is the established doctrine in this court; so that in the light of the rule, and the qualification thereto, "if there was negligence on the part of the defendant, and also on the part of the deceased, and the negligence of the latter contributed to the injury, the right of recovery depends upon the circumstances." If, however, the death of the deceased would not have occurred but for his own negligence, then, as we have seen, there can be no recovery. In the light of these principles applied to the evidence certified in the bill of exceptions, it is clear that the motion for a new trial ought to have been granted.

As already shown, the charge in the declaration is that the defendant, on the twenty-first of December, 1885, did so carelessly operate one of its trains, in crossing a public highway, as to run with great force and violence upon and against the plaintiff's intestate, whereby he was then and there killed. The evidence for the plaintiff shows that, on the day mentioned in the declaration, the deceased was traveling on the public highway leading from Pungoteague to Fair Oaks, in the county of Accomack; that he was riding in his carriage, "with the top up;" that at the crossing where the accident occurred the road crosses the railroad track at an acute angle; that for several miles, including the crossing, the railroad track is straight; that at a point 25 or 30 yards from the...