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

• Decision Date: 10 June 1909
• Citation: 109 Va. 754,64 S.E. 1060
• Court: Virginia Supreme Court
• Parties: NEW YORK, P. & N. R. CO. v. WILSON'S ADM'R.

64 S.E. 1060

(109 Va. 754)

NEW YORK, P. & N. R. CO.

v.WILSON'S ADM'R.

Supreme Court of Appeals of Virginia.

June 10, 1909.

On Rehearing, June 24, 1909.

I. Evidence (§ 507*) — Opinion Evidence — Expert Testimony.

How far a red lantern used as a railroad clanger signal could be observed on a foggy morning is not a matter of expert knowledge requiring expert testimony, being a matter resting on common experience.

[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 507.*]

2. Evidence (§ 483*)—Opinion Evidence-Matters of Common Knowledge.

In an action for a railroad fireman's death by the collision of his train with a freight train which was standing still because plaintiff's train crew did not observe a red light signal sent back by the freight train crew, a witness who was on the freight train the morning of the accident, and saw the fog and the signal lanterns, could testify how far such lantern could be observed under the circumstances; that being a matter depending upon common experience.

[Ed. Note.—For other cases, see Evidence, Dec. Dig.§ 483.*]

3. Appeal and Error (§ 1050*)—Harmless Error — Prejudicial Effect — Admission of Testimony.

In an action for a railroad fireman's death by the collision of his train with a freight train ahead caused by the crew on decedent's train not observing the red lamp signals sent back by the freight train, any error in admitting testimony by one who was on the train at the time of the accident as to how far the red lantern could be seen through the fog was harmless.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1050.*]

4. Evidence (§ 539y₂*)—Opinton Evidence —Expert Testimony—Operation of Railroads.

One who had been a railroad brakeman and engineer for a number of years was qualified to testify as to what the usual railroad danger signals were and their meaning.

[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 539 1/2.*]

5. Appeal and Error (§ 1051*)—Harmless Error — Admission of Testimony — Facts Otherwise Proved.

Even if a witness was not qualified to testify as to what were the usual danger signals used in the operation of a railroad, the admission of his testimony was not reversible where such facts were proved without objection by another witness.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §| 4161-4170; Dec. Dig. § 1051.*]

6. Master and Servant (§ 265*)—Injuries-Negligence—Burden of Proof.

Plaintiff must show that his intestate was injured by his employer's negligence in order to recover therefor; that he was injured being of itself insufficient.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 265.*]

7. Master and Servant (§ 137*)—Master's Duty — Care Required — Operation of Trains.

Where a freight train which was running ahead of intestate's train stopped because of an accident, it was the company's duty to use reasonable care to give proper warning of the danger to intestate's train, but its duty was performed when proper signals were given, even though they were not observed by the employes on intestate's train.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 137.*]

8. Master and Servant (§ 236*)—Injuries —Contributory Negligence.

Plaintiff could not recover for intestate's death by collision with a freight train, whichwas running ahead of his train, if the failure to observe the danger signals given by the employes of the freight train was due to intestate's failure to keep a proper lookout, as he was required to do.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 23G.*]

9. Master and Servant (§ 296^2-*)—Injuries —Actions—Instructions—Misleading Instructions.

In an action for intestate's death in a collision of his engine with a freight train which had stopped ahead of it. because of the failure to observe danger signals sent back by the freight train, a requested instruction that, if intestate did not use ordinary care by keeping a proper lookout for danger signals, he contributed to his death, and could not recover, though defendant was also negligent, correctly stated the law, and it was erroneous and misleading to qualify it by adding, "provided such lookout would have prevented the accident"; the qualification having already been sufficiently covered by other instructions.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 296.*]

10. Master and Servant (§ 137*)—Injuries —Negligence.

Where a freight train which was running ahead of intestate's train stopped and sent back a flagman to signal intestate's train, if, under the circumstances the only proper signal was a fusee, the flagman was negligent in not supplying himself with them before leaving the caboose.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 137.*]

11. Master and Servant (§ 137*)—Master's Duty—Care Required.

It is a railroad company's duty to exercise reasonable care for the safety of its employes, but it need not exercise more than ordinary care under the circumstances, however hazardous the employment may be.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 137.*]

12. Trial (§ 203*) — Instructions — Issues and Theories of Case.

In an action for intestate's death by the collision of his engine with a freight train ahead of it, because intestate's crew did not see the red lantern sent back by the freight train, where plaintiff claimed that a lantern signal was not adequate under the circumstances, hut that a fusee signal should have been used, but there was evidence to support defendant's theory that a red lantern signal was sufficient, a requested instruction embodying its theory should have been given.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 203.*]

Error to Circuit Court, Northampton

County.

Action by Wilson's administrator against the New York, Philadelphia & Norfolk Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

Plaintiff requested the court to give the following instructions, which were given over objection.

"(1) The court instructs the jury that if they believe from the evidence that Nelson, the flagman of train No. 1, went back a sufficient distance to have warned Parker, the engineer on train No. 49, by the use of tor pedoes or fusees, in time for Parker to have stopped his engine and prevented the collision, and that the said Nelson could, in the exercise of ordinary care, have carried with him and used said torpedoes or fusees, but that he either did not carry them with him, or, if he did, did not use them, and, if he had done so, Parker would have stopped his engine in time to prevent the collision, and that his not doing so was a lack of ordinary care on his part, and was the proximate cause of the collision, then they will find for the plaintiff. The court further instructs you that the plaintiff in this case is entitled to recover, although they may believe that Parker was guilty of negligence contributing to the accident, if Wilson was not so guilty, and the brakeman was guilty as aforesaid.

"(2) The words 'ordinary care' as used in these instructions means such care as a man of ordinary prudence would have used under similar circumstances in view of the dangers incident to the service, but what could have been ordinary care under some circumstances might be negligence under other circumstances, and it is for the jury to decide from all the evidence whether ordinary care was used in this case.

"(3) If the jury believe from the evidence that the plaintiff is entitled to recover in estimating the damages, the jury should find the sum with reference:

"First. To the pecuniary loss of his mother and sisters, at a sum equal to the probable earnings of the deceased, considering his age, business capacity, experience, habits, energy, and perseverance during his lifetime.

"Second. They may consider the loss of his care, attention, and society to his mother and sisters.

"Third. They may add such sums as they may deem fair and just by way of solace and comfort to his mother and sisters for the sorrow, sufferings, and mental anguish occasioned by his death. The plaintiff in his declaration claims $10,000 in damages, and the jury are authorized to award such sum as the evidence justifies, If any, not exceeding the sum so claimed by the plaintiff."

And thereupon the defendant, by counsel, asked the court to instruct the jury as follows:

"(A) The court instructs the jury that, in an action against a railroad company to recover damages for an injury negligently inflicted on a servant of the company, the burden of proof is on the plaintiff to establish the negligence of the defendant by affirmative evidence, which must show more than a mere probability of a negligent act. The evidence of negligence must not be left wholly to conjecture, and, in determining whether or not an act or omission of the master was negligent, it must be borne in mind that the master (railroad company) is not compelled toforesee and provide against that which reasonable and prudent men would not expect to happen.

"(B) If the jury believe from the evidence that Daniel J. Parker, the engineer on train No. 49, was notified at Hallwood Station, a station of the New York, Philadelphia & Norfolk Railroad Company, about 25 miles north of the place of the collision, between trains No. 49 and No. 1, at or about the hour of —o'clock a. m., on the 10th day of April, 1906, the day of the collision between said trains, both being south bound on the same track, a single track, by William D. Nelson, a flagman on train No. 1, to look out for his train No. 1, that it was running ahead of train 49, with a driving hot box, and that fireman, George R. Wilson, of train 49, the plaintiff's intestate, was present and within the hearing of William D. Nelson when said Nelson gave this notice to the said Daniel J. Parker (the said engineer), and that train 1 left Hallwood Station only about five minutes ahead of train 49, and that the weather was very...