Norfolk & W. R. Co v. Groseclose's Adm'r

• Decision Date: 16 July 1891
• Citation: 13 S.E. 454,88 Va. 267
• Court: Virginia Supreme Court
• Parties: Norfolk & W. R. Co. v. Groseclose's Adm'r.

13 S.E. 454

88 Va. 267

Norfolk & W. R. Co.

v.Groseclose's Adm'r.

Supreme Court of Appeals of Virginia.

July 16, 1891.

Injury to Passengers—Review on Appeal.

1. A freight train, with caboose for passengers, stopped at a certain station, and the conductor, though he saw several persons approaching with baggage, ordered the engineer to back the train. Without warning, the train was violently backed while the passengers were boarding it, fatally injuring a boy between five and six years old, standing on the ends of the ties and about to get on..Held, that the railroad was negligent.

a. Where the evidence, and not the facts, are certified to the supreme court, the case will bo treated as on a demurrer to evidence; and evidence for the defendant that the child was standing behind the car, between the rails, and attempting to climb upon the bumper, will be rejected.

8. In a suit by the administrator of such infant, the contributory negligence of the parents cannot be imputed to him, and is therefore im material.

4. Although the railroad required fare for all children over five years old, the fact that the father purchased no ticket for such child will not bar recovery, and whether or not he knew that a ticket was required is immaterial.

5. Where the mother is not a party to the suit, and is in no way interested therein, her declarations, made immediately after the accident, are immaterial.

Error to circuit court, Washington county; John A. Kelly, Judge.

Action by the administrator of one Groseclose, an infant, against the Norfolk & Western Railroad Company, for the negligent killing of the deceased. Judgment for plaintiff. Defendant brings error. Affirmed.

Fulkersons, Page & Hart, for plaintiff in error.

F. S. Blair and D. Trigg, for defendant in error.

Lewis, P. The action was to recover damages for the alleged negligent killing of the plaintiff's intestate, a child five years and one month of age. On the 9th of February, 1888, M. L. Groseclose, accompanied by his wife and five children, went to Meadow View, a station on the defendant road, in Washington county, to take a train for Rural Retreat, in Wythe county. He purchased of the defendant's agent at Meadow View two whole tickets and two half tickets for himself and family. Of the five children, two were under five years of age; the other three were over that age, but under twelve. Before the arrival of the train at the station, the father asked and secured the assistance of three gentlemen, who were present, in getting the children on the car. The train was a local freight train, having at its rear end a caboose for passengers. Upon the arrival of the train, and after it had stopped, the children and their adult attendants left the depot platform, and started for the train. Several passengers alighted from the caboose car, when Groseclose, the father, with one of the children, went up the steps, and into the car. He was followed by Mr. Naff, who carried another child. Following Naff was Mrs. Groseclose, but, just as she had gotten up the steps, the train, with a violent and sudden jerk, started backward, the steps of the caboose striking the deceased, who was standing on the end of the ties, and throwing him under the wheels of the train, which passed over and crushed his left leg, and inflicted other injuries, which caused his death the same day. The conductor of the train saw the party approaching the caboose, with their luggage, but paid no attention to them. In fact, he went in another direction, to see, as he says, about the freight. And, not only this, but he deliberately or-dered a brakeman to signal the engineer to back the train when he knew, or ought to have known, that passengers were in the act of getting on, to whom no warning whatever was given. The whistle on the engine was not sounded, nor the bell rung, and the only signal to the engineer was a slight wave of the brakeman's hand. Under these circumstances, a clearer case of culpable negligence, or the violation of the duty of a railroad company, as a part of the implied contract to carry safely, to give its pasengers time to get off and on in safety, could hardly be imagined. Whart. Neg. § 648; Railroad Co. v. Prinnell, (Va.) 3 S. E. Rep. 95.

The company, however, contends that it was negligence on the part of the parents to allow the deceased to stand at the place he was when struck, and their contributory negligence bars a recovery. It is conceded that the deceased himself, by reason of his tender years, was non sui juris, and therefore incapable of contributory negligence. There was evidence for tbe company, on the question of the parents' negligence, tending to show that the deceased, when struck, was standing behind the car, between the rails, apparently attempting to climb upon the bumper. But this evidence must be rejected, because it is in conflict with the plaintiff's evidence, which shows that he was not between the rails, but was standiug near the car on the ends of the ties. We say the evidence must be rejected, inasmuch as the evidence, not the facts, being certified, the case stands in this court as on a demurrer to evidence; and, viewing the case in this light, the charge of contributory negligence is not sustained.

But that is a wholly immaterial question in this action. When the suit is by a parent for the loss of service caused by an injury to the child, the contributory negligence of the plaintiff is a good defense; but such negligence is not imputable to the child, and is consequently not to be considered when the suit is by the child or its personal representative. Shear. & R. Neg. § 48a; Glassey v. Railroad Co., 57 Pa. St. 172; Huff v. Ames, 16 Neb. 139, 19 N. W. Rep. 623. The doctrine of Hartfield v. Roper, 21 Wend. 615, has been repudiated in this state, as in many other states of the Union, and the...