Newport News Pub. Co v. Beaumeister

• Decision Date: 16 June 1904
• Citation: 102 Va. 677,47 S.E. 821
• Parties: NEWPORT NEWS PUB. CO. v. BEAUMEISTER.
• Court: Virginia Supreme Court

47 S.E. 821

102 Va. 677

NEWPORT NEWS PUB. CO.

v.BEAUMEISTER.

Supreme Court of Appeals of Virginia.

June 16, 1904.

NEGLIGENCE — PRESUMPTION OP LAW — EVIDENCE—MASTER AND SERVANT—CONTRIBUTORY NEGLIGENCE.

1. The presumption of law that the instinct of self-preservation forbids the imputation of recklessness to any one can be considered only in the absence of evidence tending to show negligence.

2. Where a servant has a choice of two ways in performing his duty, one of which is perfectly safe and the other dangerous, and he voluntarily chooses the latter and is injured, he isguilty of contributory negligence, and the master is not liable—as where, with knowledge, to stop machinery he attempts acts which are dangerous to perform while it is running.

¶ 2. See Master and Servant, vol. 34, Cent. Dig. §§ 745, 749.

Error to Circuit Court of City of Newport News.

Action by W. H. Beaurneister against the Newport News Publishing Company. Judgment for plaintiff. Defendant brings error. Reversed.

R. M. Lett and O. D. Batchelor, for plaintiff in error.

Bickford & Stewart and C. A. Ashby, for defendant in error.

HARRISON, J. The question involved In this case is the liability of the Newport News Publishing Company for the alleged negligent injury of the plaintiff, W. H. Beaurneister, while in the service of the defendant company as pressman in charge of its printing press.

The plaintiff alleges that, in operating the printing press of the defendant company, It became necessary for him to occasionally enter the pit under the press, in order to adjust certain parts of the machine; that it was the duty of the defendant, in the exercise of reasonable care, to properly light the pit, so that the plaintiff might, with due caution on his part, perform his duties therein; that the defendant failed to provide sufficient light in the pit for his safety, though It had promised to do so, and that, in reliance on such promise, plaintiff had continued In defendant's employment; and that on the day of the accident he had, in the performance of his duties, entered the pit, and, by reason of the insufficient light, was so injured that he suffered the loss of his hand.

Upon the plea of not guilty, issue was joined, and a verdict returned in favor of the plaintiff for $2,000, which the circuit court refused to set aside.

Among the errors assigned is the action of the court in giving the following instruction for the plaintiff:

"The court instructs the jury that contributory negligence is as distinctly a wrong in the plaintiff as negligence is in the defendant, and that it is as much against the principles of the law to presume it upon the one side as on the other. And that the instinct of self-preservation forbids the imputation of recklessness to any one."

The last paragraph of this instruction would only be pertinent in a case where there was no evidence to sustain the theory of negligence on the part of the plaintiff. It has, however, no application where, as in the case at bar, the evidence is abundant to show the circumstances of the accident. In support of this instruction, Southern R. R. Co. v. Bryant's Adm'r, 95 Va. 212, 28 S. E. 183, is relied on. In that case Bryant was killed at a crossing, and the evidence was silent as to whether he had listened before attempting to cross. Under these circumstances, the court said it could not be inferred, as a matter of law, that Bryant did not listen, because he drove upon the track without stopping, the instinct of self-preservation forbidding the imputation of recklessness to any one; that, where a traveler approaches a railroad crossing, and the negligence of the railroad company is established, in the absence of evidence to the contrary the presumption is, though perhaps slight, that the traveler did his duty in approaching the crossing. The court was dealing with the presumption of law attendant upon the absence of evidence. No such condition is presented by the case at bar. On the contrary, the evidence tends to show negligence on the part of both the plaintiff and the defendant. In such a case the verdict of the jury must rest upon the facts proven, and the inferences to be reasonably drawn therefrom, and not upon the presumptions of law in favor of either party. The instruction under consideration was therefore misleading, and calculated...