Norfolk & Petersburg R. R. Co. v. Ormsby

• Decision Date: 27 April 1876
• Citation: 68 Va. 455
• Court: Virginia Supreme Court
• Parties: NORFOLK & PETERSBURG R. R. CO. v. ORMSBY.

68 Va. 455

NORFOLK & PETERSBURG R. R. CO. v. ORMSBY.

Supreme Court of Appeals of Virginia.

April 27, 1876

1. The terms negligence and ordinary care are correlative terms. Ordinary care depends on the circumstances of the particular case, and is such care as a person of ordinary prudence under the circumstances would have exercised.

2. A railroad company running its cars through a populous street of a city, on which many children live, must omit nothing which can be done by the company and its agents to prevent injury to children on the street.

3. A child two years and ten months old cannot be capable of contributory negligence, so as to relieve a railroad company from liability for its own negligence.

4. Negligence of the parent or guardian of an infant child injured by a railroad car, cannot constitute contributory negligence on the part of the child, so as to exonerate the company. Lynch v. Nurden, 41 Eng. C. L. R. 422 approved; Hatfield v. Roper, 21 Wend. R. 615 disapproved.

5. In an action for injuries involving the loss of an arm plaintiff may introduce evidence to show what must be the effect of his injuries in disqualifying him from pursuits requiring two hands.

This was an action of trespass on the case in the corporation court of Norfolk, brought in December 1869, by Charles Ormsby, an infant, by his next friend, against the Norfolk and Petersburg Railroad Company. The declaration set out:

For that whereas the defendants before and at the time of the committing of the grievances hereinafter mentioned, to-wit on the 30th day of August, in the year 1869, were the owners of a certain railroad, to-wit, of a railroad from the said city of Norfolk, which connects with the Southside railroad at or near the city of Petersburg, and of a certain engine and cars, then under the care and management of certain servants of the said defendants; nevertheless the said defendants, by their said servants, so carelessly, negligently and improperly behaved and conducted themselves in and about the management, control, and direction of the said engine and cars, that the same, by and through the default, carelessness, negligence, and improper conduct of the said servants of the said defendants, then with great force and violence were driven and struck against the said plaintiff, by means whereof the right arm of the plaintiff was so fractured and injured that it became necessary to amputate the same, and the said arm was thereupon amputated, and he was otherwise greatly wounded, bruised, and injured, and so remained for a long space of time; and also by means of the premises the plaintiff was so maimed as to be disabled for the remainder of his life. To the damage of the said plaintiff of $30,000.

The issue was made up on the plea of " not guilty; " and the cause came on to be tried at the May term of the court 1872, when the jury found a verdict in favor of the plaintiff, and assessed his damages at $8,000. The defendant thereupon moved the court to set aside the verdict and grant it a new trial, on the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion, and rendred judgment according to the verdict. To this opinion of the court the defendant excepted; and the court certified the following as the facts proved upon the trial.

That on the morning of the last day of August, 1869, between the hours of nine and ten o'clock, the agents of the defendant carried two flat cars loaded with lumber, from its depot in the city of Norfolk down its track on Widewater street, in the said city, and left them in front of McCullough's lumber-yard, on said street, to be unloaded and one other flat car loaded with lumber, further down the said street, and left the same in front of Murdock Howell's lumberyard on said street, to be unloaded; that the said flat cars remained at the places at which they were respectively left, until between four and five o'clock in the afternoon of that day, when the said agents of the defendant left the said depot with a locomotive and five box cars in front of it, loaded with freight for the Boston steamer, the purpose being to carry the said box cars down Widewater street to Town Point, near the foot of said street, to be unloaded and to gather up and carry back to the depot the three flat cars that had been left on said street loaded with lumber during the forenoon. When the said locomotive and box cars reached McCullough's lumber-yard, the two flat cars left there in the morning having been unloaded, were coupled on the said train, the said agents with the locomotive, five box cars and two flat cars, then proceeded on in the direction of Murdock Howell's lumber yard, on said street, for the purpose of coupling on to the flat car left at that point in the forenoon, to be unloaded. That on the said train when it left the depot, there were G. W. Alsop, the engineer; a fireman, whose name was not given; J. T. Roberts, the yard master; James Pierce, switchman, and a colored train hand named Smith Vass. That the said J. T. Roberts was stationed on a brake-wheel two feet above the top of the fifth box car, being the next one to the flats, and the said Pierce and the said Vass were stationed on the foremost flat car, after they were coupled on at McCullough's lumber yard. That while the train moved from the depot down Widewater street, the bell on the engine was rung continually by the fireman, until the train reached Market Square, a point on the said track between the depot and Howell's lumber-yard, and at that point the fireman left the train, by the permission of the engineer; and from that point by the engineer until the train reached the flat car at Howell's lumber yard. That when the said front of the said train reached the United engine house, situated on said street, at a point about two hundred and twenty feet from the flat car in front of Murdock Howell's lumber-yard, it was moving at a rate of speed between two and three miles an hour. That about that point a signal was given to the engineer by the yard master, Roberts, to slacken the speed of the train in order to couple on to the flat car in front of Howell's lumber yard, which signal was heard and obeyed by the engineer. That at the time the moving train came in contact with the stationary flat car, the engine was running with steam from the boiler shut off, and was propelled solely by the steam in the dry pipe, the train was moving very slowly; the engineer on the train used all the appliances known to his business, to make the train move as slow as possible in order to couple. It is not possible to move a train slower than one mile per hour, it is very difficult to move at all at this rate; ordinarily, when using every appliance, the rate is one and one-half miles per hour; that during the whole time that the said train was moving from the depot westward, to collect the flats left on the track in the forenoon, the engine bell was rung, a man was on the top of one of the box cars, and two men on the flat car at the extremity of the train, by way of lookout, to give signals to the engineer in charge of the engine; that the man on the box car blew a whistle as he deemed necessary, and that these were the precautions usual and customary when the defendant was moving a train on said street. That the said James Pierce and Smith Vass, who were stationed on the front flat car attached to the moving train, and whose business it was to couple the stationary flat car to the moving train, attempted to effect the said coupling, but failed to do so, because the coupling pin which was left on the stationary car in the forenoon had by some means been removed during the day. That the said Pierce, when the moving train was within two cars of, or seventy-five or eighty feet of the stationary flat car, discovered that the coupling pin had been removed, and jumped from the flat car on which he was standing, and ran back to the engine for the purpose of getting another. That it had been customary to leave the coupling pins on the freight cars, which were detached and left on the track to be loaded or unloaded. That in Portsmouth the coupling pins left with the cars were so commonly thrown away by mischievous boys, or stolen by negroes, that the train master was put to great inconvenience, and adopted the plan of attaching them permanently to the cars. That when the train struck the stationary car and failed to make a coupling, the said stationary car was driven back on the track about one-half of its length, its whole length being from twenty-seven to thirty feet; and if the attempt to couple had been successful, the said stationary flat car would have been driven back not more than three feet. That at the time of the concussion of the moving train with the stationary car, the said stationary car had been discharged of about one-half of its load of lumber; that on the day on which the plaintiff received his injury, some time between ten o'clock A. M. and two o'clock P. M., one of the agents of the defendant, F. M. Ironmonger, whose business it was to superintend the railroad track on Widewater street and attend to the moving of the trains, was passing along said street, and saw a small boy, whom he supposed to be the plaintiff, in rear of the wheel of the said stationary flat car in front of Mr. Howell's lumber-yard, and in a very dangerous position, and drove him away from said car in the direction of the residence of Mrs. Ormsby, mother of the plaintiff; that Mrs. Ormsby, the mother of the plaintiff, lived in a tenement on Widewater street, between the United engine-house and the flat car standing in front of Mr. Howell's lumber-yard, being about one hundred and eighty feet distant from the engine-house, and about forty feet...