Norfolk-southern R. Co v. Tomlinson

• Decision Date: 12 March 1914
• Citation: 116 Va. 153,81 S.E. 89
• Parties: NORFOLK-SOUTHERN R. CO. v. TOMLINSON.
• Court: Virginia Supreme Court

(116 Va. 153)

81 S.E. 89

NORFOLK-SOUTHERN R. CO.

v.TOMLINSON.

Supreme Court of Appeals of Virginia.

March 12, 1914.

1. Damages (§ 216*)—Actions—Instructions.

An instruction that the jury, in assessing damages for a personal injury, might take into consideration such damages as would probably result in the future as a consequence of the injury is not erroneous in failing to confine the jury to the evidence, where they could not have understood from the whole instruction that they could fix future damages by mere conjecture.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*]

2. Carriers (§ 280*)—Carriage of Passengers—Duties.

It is the duty of a carrier of passengers to use the highest degree of care known to human foresight, and this degree of care applies, not only to the manner of operating trains, but to the equipment.

(Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.*]

3. Carriers (§ 321*)—Carriage of Passengers—Actions—Instructions.

Where the court charged the jury that a railroad company was bound to exercise the highest degree of care for the safety of its passengers, the refusal of an instruction, requested by the railroad company, that the carrier was nott an insurer of its passengers, and was not liable if it used such care, is improper.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. Si 1247, 1326-1336, 1343; Dec. Dig. § 321.*] i. Carriers (§ 321*) — Carriage of Passen-

g ers—Action s—I nstructi o ns.

In an action by a passenger hurt in a derailment, an instruction that the jury could not find for plaintiff unless they believed that the railroad company had been shown to have been guilty of negligence which caused the accident is properly refused, because ambiguous and tending to lead the jury to believe there could be no verdict for plaintiff in the absence of proof of some specific act of negligence on the part of the railroad company.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. S 321.*]

5. Carriers (§ 316*)—Carriage of Passengers—Res Ipsa Loquitur.

While proof of an accident to a passenger train raises a presumption that the carrier failed to exercise the high degree of care which it was bound to use, the presumption does not relieve an injured passenger from the burden of establishing his right to recover by the preponderance of the evidence, and where the carrier introduced evidence tending to establish its exercise of due care, the jury must determine whether the presumption has been broken down by such evidence, taking into consideration that the burden of proof is on the passenger.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 1285-1294; Dec. Dig. § 316.*]

6. Carriers (§ 316*)—Carriage of Passengers—I n juries—Presumptions.

Where a passenger was injured by the derailment of a railroad train, the carrier may rebut the presumption of negligence arising from the accident without showing what caused the derailment

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 1285-1294; Dec. Dig. § 316.*]

7. Trial (§ 125*)—Argument of Counsel.

In an action by a passenger injured in a derailment, only compensatory damages are to be awarded; and hence argument of the passenger's counsel that the higher officials of the railroad company responsible for its management would alone with others feel whatever verdict might be rendered is improper, tending to appeal to the prejudice of the jury, and to induce them to award punitive damages.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.*]

Error to Circuit Court, Norfolk County.

Action by Thomas F. Tomlinson against the Norfolk-Southern Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.

Jas. G. Martin, of Norfolk, for plaintiff in error.

W. H. Venable and N. T. Green, both of Norfolk, for defendant in error.

BUCHANAN, J. The defendant in error, who was the plaintiff in the trial court, and who will be designated in this opinion as plaintiff, was injured in a derailment of the car in which he was traveling as a passenger over the defendant railroad company's road. The defendant introduced evidence tending to show that when the derailment occurred its train was running, in the daytime, over a straight track, through a level country, a little behind time, but not at an excessive or unusual rate of speed, when three of the four cars in the train jumped the track and turned over. The defendant further introduced evidence that the engine and cars, roadbed and track, on the day and at the place of the derailment, were all in good and proper condition, and that its train was being properly managed and run at that time, and that after careful examination the defendant was unable to ascertain the cause of the derailment.

The plaintiff introduced evidence to show that the roadbed was not ballasted, that there were rotten or decayed ties at or near the point of derailment, and that the roadbed was not properly inspected.

The plaintiff asked for five, and the defendant for nine, instructions. All of the plaintiff's instructions were given, and all of the defendant's, as asked, except the first (which was amended, and as amended given) and the second (which was refused).

The first and second errors assigned are to the action of the court in giving and refusing instructions, and, as they involve more or less the same questions, except instruction E given for the plaintiff, they may be considered together.

Instruction E related to the measure of damages, and the only objection made to it is that it told the jury that in assessing damages they might take into consideration "such damages as will naturally, reasonably, and probably result to him [the plaintiff] in the future as consequences of his injuries, " without confining them to the evidence before them, as was done in the instruction in reference to all other items of damage which they might take into consideration.

It would have been better to have told the jury that future damages, like all other damages allowed, must be ascertained from the evidence before them; but, when the instruction as a whole is considered, we do not think that the jury could have thought they had the right to fix the future damages by mere conjecture instead of by the evidence before them.

The seven instructions, given for the defendant as asked, related to the question of damages also, and the rights and duties of the jurors, and in no way affect the action of the court in giving and refusing the other Instructions.

By instruction A, given for the plaintiff, the jury were told that: "It was the duty of the defendant company In carrying the plaintiff upon its said train to use the highest 'degree of care for his safety known to human prudence and foresight, and is liable for the slightest negligence against which human care and foresight might have guarded. This degree of care is required, and applies, not only to the manner in which the train was being run by the engineer, but also to the running gear and equipment of the engine, tender, and cars, and to the way In which its roadbed was constructed and its ties and rails laid and maintained; and, if you believe from the evidence that the defendant failed to exercise such care in any of these particulars, and that such failure caused the derailment resulting in injuries to the plaintiff your verdict must be for the plaintiff."

While instruction A was objected to in the trial court and error assigned to all the instructions given for the plaintiff, no objection to that instruction is pointed out, either in the petition or in oral argument, nor do we see that any could be. It is a clear and correct statement of the law as to the duty of the defendant company to the plaintiff, and properly told the jury that if the defendant failed in the performance of its duty in respect to any of the things required of it, and such failure caused the derailment, they must find for the plaintiff. Wightman's Case, 29 Grat. (70 Va.) 431, 445, 26 Am. Rep. 384; Noel's Case, 32 Grat. (73 Va.) 394, 400; Tanner's Case, 100 Va. 379, at page 381, 41 S. E. 721, instructions 3 to 7, offered by the plaintiff and approved by the court.

By instruction No. 1, as offered by the defendant, the court was asked to tell the jury "that a railroad company is not an insurer of its passengers, but merely has to use the highest degree of practical care for their safety; and, if the jury believe from the evidence that the defendant used such care in this case, they must find for the defendant."

The court having by instruction A properly defined the high degree of care required of the defendant to the plaintiff, and told the jury that if the defendant had failed in any respect in the performance of that duty they must find for the plaintiff, it would seem clear that if the defendant had fully performed that duty, then it was entitled to a verdict, and the jury should have been so instructed. If the court had added the words to instruction A, "but if, on the contrary, you believe from the evidence that the defendant has exercised such care, then you must find for the defendant, " it would have properly propounded the law in both aspects of the case. This, as we understand it, is all that instruction No. 1 did as offered.

In Tanner's Case, supra, which was a derailment case, where the cause of the derailment, as in this case, was not shown, the following instruction was given for the defendant, as appears from the record, and approved by the court: "The court instructs the jury that the defendant was not an insurer of the plaintiff as a passenger against injury by derailment or other accidents to its train upon which she was traveling, and that it only owed to her the duty of the highest degree of care that prudence and foresight could demonstrate the necessity of...