Norfolk Southern R. Co v. Smith

• Decision Date: 24 January 1918
• Citation: Norfolk Southern R. Co v. Smith, 94 S.E. 789, 122 Va. 302 (1918)
• Parties: NORFOLK SOUTHERN R. CO. v. SMITH.
• Court: Virginia Supreme Court

94 S.E. 789

(122 Va. 302)

NORFOLK SOUTHERN R. CO.

v.SMITH.

Supreme Court of Appeals of Virginia.

Jan. 24, 1918.

Error to Circuit Court, Princess Anne County.

Action by A. R. Smith against the Norfolk Southern Railroad Company.Judgment for plaintiff, and defendant brings error.Verdict set aside, judgment reversed, and cause remanded.

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

R. R. Hicks and W. R, L. Taylor, both of Norfolk, for defendant in error.

PRENTIS, J.The plaintiff in error, hereinafter called the company, complains of a final judgment in favor of the defendant in error, hereinafter called the plaintiff, because of an injury caused by the collision of a train of the company, consisting of three electrically operated cars, with an automobile operated by him, at) a road crossing in Princess Anne county.There were two trials; the court having, upon motion of the company, set aside the first verdict in favor of the plaintiff, but refused to set aside the verdict against the company upon the second trial, and entered judgment thereon.

The first error assigned is the overruling of the demurrer to the declaration and to each count thereof.It is sufficient to say, as to this, that under the Virginia statute(Code, § 3272) a declaration is not demurrable unless something so essential to the action is omitted that judgment according to the law and the very right of the case cannot be given.In this case, each of the four counts in the declaration gives the date and place of the accident, and such particulars thereof as plainly informed the comr pany of every fact relied on by the plaintiff, which was essential to enable it to make its defense.The company is charged with negligence in several particulars, and with failure to exercise ordinary care to avoid the accident after, by the exercise of" such care, it should have seen the plaintiff's danger.This is sufficient, and the court properly overrruled the demurrer.

Another error assigned is the granting, upon the motion of the plaintiff, of instructions A and B.

Instruction A reads thus:

"The court instructs the jury that, even though they may believe from the evidence that the plaintiff was guilty of contributory negligence, yet if they further believe from the evidence that the defendant company knew of the plaintiff's danger, or by the exercise of ordinary care should have known of the plaintiff's danger, in time to have stopped its train and avoided the accident, it was its duty to do so and if they believe from the evidence that the said defendant company failed to exercise this duty and that such failure was the proximate cause of the injury, it is liable, and your verdict should be for the plaintiff."

An instruction in this precise language was condemned in the opinion of this court in Norfolk Southern Railroad Co. v. Whitehead, 92 S. E. 916.In that case it was determined to be harmless error.

Instruction B reads thus:

"The court instructs the jury that the burden of proving contributory negligence is upon the defendant."

Such an instruction has been condemned in several cases in Virginia.It should have concluded thus, "unless such contributory negligence was disclosed by the plaintiff's evidence, or could fairly be inferred from the circumstances, " or with language of similar import.Kimball & Fink v. Friend, 95 Va. 125, 27 S. E. 901;Southern Ry. Co. v. Bruce, 97 Va. 92, 33 S. E. 548;Southern Ry. Co. v. Mason, 119 Va. 262, 89 S. E. 225.

The refusal of the court to grant instruction Z, at the request of the company, is assigned as error.This instruction reads:

"The court instructs the jury that the law recognizes the fact that the nerves and muscles of men are not so co-ordinated that there can be instantaneous action to meet an emergency, and if you believe from the evidence the plaintiffs automobile was suddenly stopped on the track, you cannot find for the plaintiff, unless you believe that the plaintiff has proved by the preponderance of the evidence that in contemplation of the entire situation after the danger became known to the motorman or ought to have been discovered by him, by the exercise of ordinary care, he, the motorman, negligently failed to do something which he had a last clear chance to do to avoid the accident."

This instruction should have been given in this case.It was peculiarly appropriate in view of the evidence to be hereinafter referred to, and the failure to give it was prejudicial error.

The doctrine of the last clear chance has nowhere been better stated than in the syllabus to the case of Roanoke Ry. & Elec. Co. v. Carroll, 112 Va. 598, 72 S. E. 125, thus:

"The underlying principle of the doctrine of the 'last clear chance, ' as declared by the decisions of this court, is that, notwithstanding the contributory negligence of the plaintiff, there is something in his condition or situation at the time of the injury to admonish the defendant that he is not able to protect himself.The doctrine is one of prior and subsequent negligence, or of remote and proximate cause, and presupposes the intervention of an appreciable interval of time between the prior negligence of the plaintiff and the subsequent negligence of defendant.Where the negligence of both continues down to the moment of the accident and contributes to the injury, the case is one of concurring negligence, and there can be no recovery."

And again, in Real Estate Trust & Ins. Co., Inc., v. Gwyn's Adm'x, 113 Va. 337, 74 S. E. 208:

"In order that the doctrine of the 'last clear chance' may apply, it must appear that, incontemplation of the entire situation, after the | danger of the plaintiff became known to the defendant, or ought to have been...