Norfolk & W. R. Co v. Burge

• Decision Date: 17 November 1887
• Citation: 84 Va. 63,4 S.E. 20
• Court: Virginia Supreme Court
• Parties: Norfolk & W. R. Co. v. Burge.

4 S.E. 20

84 Va. 63

Norfolk & W. R. Co.

v.Burge.

Supreme Court of Appeals of Virginia.

November 17, 1887.

1. Nbglioence—Deqree of Cake—Railroad Crossing—Duty to Look and Listen.

In an action for negligence, the court refused defendant's request for an instruction that if, by looking around or by watchfulness, plaintiff could have discovered the approach of the cars, or if he could have avoided them and did not, he could not recover. Held, that such an instruction was vague, indefinite, and misleading, in that it made no attempt to define the degree of care plaintiff should have exercised.

2. Same.

Defendant's track ran on a city street, and from it a side track led to a wharf, through a gate which was surrounded by high fences, and on the east side by lofty buildings that eftectually prevented persons coming from the wharf from seeing approaching trains. Defendant kept no watchman at the gate. At the time of the accident it was pushing a train to the wharf without giving any signals, and plaintiff was driving out when some one called to him, and he looked back. Held, that it was plaintiff's duty to look and listen for approaching trains with such care asan ordinarily prudent man would use, and, if he failed to do so, he could not recover, unless the defendant, when it saw him, or should have seen, failed to use proper means to avoid the accident.¹

8. Same.

Held, further, that if the place of the accident was so situated that a person driving out could not see an approaching train, then the fact that plaintiff did not look in front of him is not contributory negligence.

4. Same—Care Required of Railroad Company.

Held, further, that if ordinary care required the defendant to take any other precautious than those it did take, the plaintiff could recover, unless he knew the train was approaching, or did not act as an ordinarily careful man would.

5. Same—Care Required of Railroad—Instruction.

A charge that the degree of care required of a railroad company is that used by a good specialist in the same business was requested by defendant in a negligence case. Held, that it was an abstract proposition which shed no light on the case, and properly refused.

6. Same—Railroad Companies—Operation IN Cities.

Held, further, that a railroad company operating its trains on city streets must use greater care than in less frequented localities, and any neglect of any precautions proper in the peculiar circumstances of the locality constitutes negligence.

7. Same—Railroads—Pushing Train.

Held, further, that if pushing a train increased the risk of plaintiff, it was negligence on the part of the defendant not to give timely notice of what it was doing.

8. Same—Railroads—Care Required—Province of Jury.

Held, further, that it was properly left to the jury to find whether the defendant had performed or omitted any act which, in the exercise of ordinary care, it was its duty to perform.

9. Damages—Excessive—Personal Injuries.

The injuries which plaintiff received by being run into by defendant's train were the loss of his truck, the amputation of two toes, and a permanent injury to his leg, which made it necessary for him to have an assistant in his business. Held, that a verdict of $2,000 damages was not excessive.

Error to the corporation court of the city of Norfolk.

Action for personal injuries.

Defendant was pushing its train when it struck plaintiff's truck, demolishing it, and plaintiff's foot and leg were caught in the wreck, causing injuries which resulted in the amputation of two of his toes, and injuries to his leg of a permanent and painful character, thereby incapacitating him for work to such an extent as to render it necessary for him to employ an additional hand to do the lifting, when he subsequently undertook to carry on his vocation as a truckman.

Sharp & Hughes and Wm. J. Robertson, for plaintiff in error.

George Mcintosh and Tunstall & Thom, for defendant in error.

Richardson, J. This was an action of trespass on the case in the corporation court of the city of Norfolk, wherein August Burge, the defendant in error here, was plaintiff, and the plaintiff in error was defendant. The declaration alleges that the plaintiff was a truckman, and that on the twentieth of June, 1885, while he was driving his truck from the wharf of the Old Dominion Steam-Ship Company, in said city, the truck was struck with such force and violence by a train of the defendant company, which was being backed or pushed into the said wharf, as that the truck was demolished, and the plaintiff himself was seriously injured. The object of the action was torecover damages for these injuries, which, it is alleged, were caused by the negligence of the defendant.

The evidence shows that the defendant has a truck running down "Water street, in said city, and that a short distance above or east of the gate, leading from the wharf of the Old Dominion Steam-Ship Company into the said street, is a switch at which a track branches off from the main track, and runs through the gate above mentioned into the said wharf. The accident in question occurred while the plaintiff was attempting to pass through this gate, which is the only means of ingress and egress for trucks and other vehicles to and from the said wharf. The evidence also shows that the railroad track on "Water street is entirely hid from the view of any one inside the gate, on the wharf, owing to high buildings on the east side, fronting on the said street, and a high, close fence on either side of the gate; so that a person about to drive from the wharf into the street cannot see a train on the track above or east of the gate; nor does the accustomed ringing of a bell, when trains are moving on the street above the gate, indicate to a person on the wharf whether the train, the bell of which is being rung, is moving on the main track, or on the track leading through the gate into the wharf, before it comes in view at the gate. The evidence also shows that, prior to the accident, the defendant company sometimes stationed a watchman at the gate to warn persons of the approach of trains when going into the wharf, —such a precaution being regarded as necessary to avoid accidents; and it does not appear that a watchman was there stationed when the accident in question occurred. In point of fact, the evidence shows the contrary. It also shows that, as the plaintiff started to drive from the wharf, his attention was attracted by some one calling to him from behind; that he turned his head in the direction from which the voice came, and, as he was driving through the gate, the train, backing to pass in at the gate, suddenly came upon the plaintiff, colliding with his truck before it cleared the gate, and injuring the plaintiff as above stated. This statement of the evidence is sufficient for a correct understanding of the questions which have been raised, respecting the action of the lower court in giving certain instructions to the jury, and in refusing to give certain other instructions.

After the evidence had been introduced, the defendant moved the court to instruct the jury as follows: "Although the jury may believe from the evidence that the defendant, or its employes, gave no signal of the approach of its cars, either by ringing bells or by calling out, or otherwise, yet if the plaintiff could, by looking around, or by watchfulness on his own part, in approaching the railroad track, have discovered the approach of the defendant's cars, or if, after seeing the same, he could have avoided them by turning aside, backing, remaining standing, or otherwise, and did not, he was guilty of such contributory negligence as bars his recovery." This instruction the court refused to give, and in lieu thereof gave the following: "Although the jury may believe from the evidence that the defendant, or its employes, gave no signal of the approach of its cars, either by ringing bells or by calling out or otherwise, yet if the plaintiff knew the train was nearing the gateway to pass through, or could by such observation or watchfulness in approaching the railroad track as a man of ordinary prudence, under the circumstances, would have used,...