Norfolk Southern R. Co v. Beskin

• Decision Date: 18 December 1924
• Citation: 125 S.E. 678
• Court: Virginia Supreme Court
• Parties: NORFOLK SOUTHERN R. CO. v. BESKIN.

125 S.E. 678

NORFOLK SOUTHERN R. CO.

v.BESKIN.

Special Court of Appeals of Virginia.

Dec. 18, 1924.

Appeal from Circuit Court of City of Norfolk.

Bill by the Norfolk Southern Railroad Company against Samuel Beskin. Bill dismissed on demurrer, and complainant appeals. Affirmed.

Jas. G. Martin & Bro., of Norfolk, for appellant.

Venable, Miller, Pilcher & Parsons, of Norfolk, for appellee.

McLEMORE, J. The bill of complaint in this cause charges that Samuel Beskin, the defendant in the court below, during the year 1917 was operating for pleasure his automobile, and carried in the car his wife and his wife's mother. At a grade crossing between Norfolk and Virginia Beach the automobile and an electric car of appellant were in collision, and Mrs. Beskin and her mother were injured.

That suits were instituted by the injured parties and a judgment recovered by the wife for $2,500, and settlement with the mother made before judgment for $5,000.

That both suits were brought against appellant alone, and it has been compelled to pay the sum of $7,500 because of said accident.

The bill further alleges that Beskin was grossly negligent in driving his car on the track in front of the approaching train, but that this negligence could not be imputed to the occupants of the car, and therefore they were permitted to recover against the appellant without regard to the negligence of the driver of the automobile.

Appellee, not having been joined as a defendant in the actions for damages, has, of course, paid no part of the recovery, and this bill was brought to compel contribution, to the end that he may be required to pay a fair portion of the damages occasioned and recovered by reason of the accident.

Upon demurrer, the learned judge of the circuit court entered a decree sustaining the same and dismissing the bill.

The sole question to be decided by this court is: Can there be contribution among or between persons where concurrent negligence was the proximate cause of an injury, for which one of them has been compelled to respond in damages?

The irreconcilable conflict in the decisions of the courts of this country would leave us quite free to accept the affirmative or negative of the question had not the doctrine been put at rest by the Supreme Court of Appeals of this state on more than one occasion.

The latest expression of the court may be found in Virginia Railway & Power Co. v. Hill, 120 Va. 397, 91 S. E. 194, wherein Kelly, J., says:

"If the plaintiff had asked for an instruction defining the taxi company's duty and it had been refused, he would have had the right to except; but not so with the codefendant railway company, the rule being, as held...