Norfolk & v. Harman. 1

• Decision Date: 30 June 1887
• Citation: 8 S.E. 251,83 Va. 553
• Court: Virginia Supreme Court
• Parties: Norfolk &, W. R. Co. v. Harman. 1

8 S.E. 251

(83 Va. 553)

Norfolk &, W. R. Co.

v.Harman. ¹

Supreme Court of Appeals of Virginia

June 30, 1887

1. Railroad Companies—Accidents on Track—Contributory Negligence.

Plaintiff's intestate was killed by defendant's engine, while walking on the track in the railroad yard, where he knew trains were constantly being made up. He was partially intoxicated, and just before dark started from a point near the tracks, of which he had a good view, in the direction whence the engine came, to go several hundred yards distant on the other side of the tracks, where a circus ad been during the day. He could have gone by three good routes without walking on the tracks, except once crossing them, but, after going part way, he went on the tracks, and carelessly walked on one of them, without looking back. Two freight trains were passing in the opposite direction at about that time, and the engine by which he was killed had stopped at a switch to wait for the passage of one of them. When it passed, the engine came on slowly, ringing its bell, which deceased did not seem to hear. Others tried to warn him, and the engineer, thinking deceased would step off the tracks as others were doing, did not attempt to stop until within one and a half car-lengths from deceased, when he used his best efforts to do so. Defendant's servants had used extraordinary precautions to prevent accidents on that day. Held, that deceased's own negligence was the proximate cause of the injury, and a demurrer to the evidence should have been sustained.

2. Same—Pleading.

A declaration in such an action, alleging that defendant on its railroad did carelessly and negligently, and with great force and violence, run and drive one of its engines and divers of its cars upon and against plaintiff's intestate, thereby greatly wounding him, so that he died, "and that his death was caused by the said wrongful act, neglect, and default of defendant, is sufficient.

3. Trial—Argument of Counsel—Demurrer to Evidence.

A demurrer to evidence having been joined in, argument to the jury is proper only on the evidence bearing upon the measure, and not in bar, of damages.

4. Same—Reading Decisions.

In the course of such argument, counsel for the plaintiff, in opening, has the right to read from decisions, to show what damages have been allowed by juries in similar cases.

Error to circuit court, Montgomery county.

Action by Hannibal Harman, administrator, etc., of Taylor Harman, deceased, against the Norfolk & Western Railroad Company for the negligent killing of intestate. There was a demurrer to evidence, and joinder therein, and the jury found for plaintiff subject to the opinion of the court, and assessed the damages at $2,700. The court decided the demurrer in plaintiff's favor, overruled a motion to set aside the verdict, and entered judgment for defendant, and plaintiff brings error.

T. J. Kirkpatrick, for plaintiff in error. Staples & Sullivan, G. G. Junkin, and Phlegar & Johnson, for defendant in error.

Richardson, J. This court is of opinion that the circuit court did not err in overruling the defendant's demurrer to the plaintiff's declaration. The principle stated by Lacy, J., in Dun v. Railroad Co., 78 Va. 645, and in numerous other cases, has no application here. In that case the facts were admitted on the face of the declaration, and the question of law was therefore submitted to the court: "Is the plaintiff entitled to any recovery?" That case decides that a passenger riding with his arm protruding through the window of a moving car is guilty of negligence per se; and, this fact being alleged in the declaration, it was held bad. The declaration in this case is not open to the same objection. The declaration here contains but one count, which is a copy (except names and dates) of the first count in the declaration in the case of Railroad Co. v. Sherman, 30 Grat. 604, which was held good on demurrer.

The court is also of opinion that the circuit court did not err in its ruling set forth in the defendant's bill of exceptions No. 1. It is this: The defendant company, after all the evidence on both sides had been introduced, and before the argument commenced, asked of the court that its counsel, in arguing the matter before the jury, should be allowed to discuss the measure of damages in the light of all the testimony submitted by the plaintiff, taken as true and correct, and of such inferences as may be reasonably made from said plaintiff's evidence, and of so much of the evidence given by the defendant company as is not in conflict with the plaintiff's testimony, and only such inferences therefrom as necessarily follow; and the court allowed such request, but held that the jury were not to inquire whether or not the plaintiff was entitled to any damages; that the demurrer to evidence withdrew that question from the jury; that the jury could only conditionally assess the damages sustained by the plaintiff, and in so doing the jury should consider the evidence only as bearing on the measure of damages; and that the defendant's counsel would be permitted to argue before the jury upon all the evidence in mitigation of damages, but not in bar of damages. The exception is to the ruling of the court after the aforesaid words, "but held, " etc. This ruling is strictly in accord with the settled rule of practice.

And the court is further of opinion that the circuit court did not err in its ruling with respect to the matter which is the foundation of the defendant's bill of exceptions No. 2. The objection is that while the plaintiff's counsel was making his opening speech to the jury he said: "Now, gentlemen of the jury, I will show you what damages other Virginia juries have given. I have some Virginia cases here. " The counsel for the defendant objected to plaintiff's counsel being allowed to refer to other verdicts. Thereupon the plaintiff's counsel said he desired to read to the jury from the case of Railroad Co. v. Ormsby, 27 Grat. 455. But the defendant's counsel objected to the verdict in that or any other case being read. The court properly overruled the objection. While it is the province of the court to give the law to the jury, and of the jury to deal with the facts, it would be an unwarranted restriction upon the legitimate scope of argument of counsel, if not a flagrant act of usurpation, for a trial court to prohibit counsel, in this state, at least, from referring to and reading from recognized authorities, and especially from decisions in similar cases by courts of last resort. These are, in fact, the sources of correct information for bench, bar, and jury, as in them are garnered up the enduring land-marks of the law, —the truths which have stood the tests of centuries, and have received the sanction of the wisest and best legislators and judges who have gone before us. There can be no wrong or danger in drawing truly from these to enforce the argument of counsel in the cause of which he may be the advocate. If, however, this great privilege is abused, as where counsel, especially in a concluding argument, persists in reading law which is palpably inappropriate, and clearly not applicable to the case under trial, it is not only the right of the trial court, but its duty, to restraincounsel from such course. But in most cases any abuse of the privilege may be checked, and even appropriately rebuked, by calling the attention of the court to the fact at the time, or by asking of the court the proper instruction to the jury. In fact, it is difficult to perceive upon what principle such practice (conceding its impropriety) could be successfully made the subject of review by an appellate court. Both bench and bar are often at honest variance as to the interpretation to be given to the language of text writers, and even of judges of high repute; and, though there may be but little difficulty in arriving at the true meaning of the language used, it is often a matter of perplexity and doubt as to the application of the principle involved, or to determine whether or not the ruling in a given case has any application to the case under trial. Doubtless, in a great majority of cases, if not in every case, it will be safest and best to rely upon the intelligent, watchful integrity of the trial judge.

We come now to consider the case on its merits, as disclosed by the evidence referred to in the defendant's third bill of exceptions. In the plaintiff's declaration, which contains but one count, it is alleged, substantially, that the defendant company, on its railway, in the county of Montgomery, did carelessly and negligently, and with great force and violence, run and drive one of its engines and divers of its cars and coaches upon and against the plaintiff's intestate, Taylor Harman, there then being, and thereby did so greatly wound said Taylor Harman that by reason thereof he then and there died, and that his death was caused by said wrongful act, neglect, and default of said railway company. Before adverting to the facts established by the evidence contained in the record, it is but just and proper to make a brief comment on the testimony of Clay Chrisman, the first witness introduced by the plaintiff, and who was with deceased during most of the day on which the accident occurred, and was immediately with him up to within a few moments before he was run over and killed. The statements of this witness, on his examination in chief and cross-examination, are in certain particulars so contradictory, and in other respects so vague and unintelligible, as to render them unreliable, except when corroborated by the testimony of other witnesses. For instance, in his examination in chief he says: "Taylor Harman was my uncle. I was with him on the day he was killed. He went there to a circus show. He went to show once. I went with him to show-ground, which was above the Central, in the direction of show-grounds. " Notwithstanding the above direct and positive statement...