Norfolk & W. R. Co v. De Bd.'s Adm'r.1

• Decision Date: 18 July 1895
• Citation: Norfolk & W. R. Co v. De Bd.'s Adm'r.1, 29 L. R. A. 825, 22 S.E. 514, 91 Va. 700 (1895)
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. DE BOARD'S ADM'R.1

22 S.E. 514

91 Va. 700

NORFOLK & W. R. CO.

v.DE BOARD'S ADM'R.¹

Supreme Court of Appeals of Virginia.

July 18, 1895.

Negligence —Injury to Licensee —Death by Wrongful Act—Damages.

1. It is the province of the jury to determine whether a person is a licensee on a railroad track.

2. One who uses a footpath over a railroad, which has been long used as a walk way by him and others, occupants of adjoining lots, with the knowledge, hut without the objection, of the railroad company, is a licensee, and is not wrongfully on said path.

3. Where a railroad company carelossly makes an excavation in a path used by licensees in such a manner as to not be open to common observation of persons walking thereon, and no warning is given, the company is liable for an injury sustained while walking thereon.

4. In assessing damages for an Injury causing death, the jury are not limited to the actual loss of services of deceased, but may assess such sum as to them may seem just, looking kt all the circumstances of the case, not exceeding the amount claimed in the declaration.

5. Employes of a railroad company, to protect the track, removed a rock which was under a path used by licensees, leaving the path undisturbed. Before the rock was removed, it was visible three or four inches above the ground, and dipped under the path. Held, that employes of the company had no such a knowledge of the dangerous condition of the path as to make the company responsible to a licensee who was using the path, and fell through at the point where the rock was removed.

Error to circuit court, Smyth county; Kelly, Judge.

The Norfolk & Western Railroad Company brings error to a judgment in favor of George De Board's administrator. Reversed.

Boiling & Stanley, for plaintiff in error.

Cole & Bell, for defendant in error.

CARDWELL, J. This is a writ of error to a judgment of the circuit court of Smyth county. The action was brought by the defendant in error to recover of the plaintiff in error damages for alleged injuries to defendant in error's decedent, caused by the uegligence of the plaintiff in error; and the case, briefly stated, is as follows: George De Board, at the time of the accident from which this suit arose, occupied a blacksmith shop on a three-acre lot of ground lying on the south side of plaintiff in error's line of railroad, about 1% miles west of Marion Station, and adjacent to a private crossing called Hull's Crossing. De Board, together with the other occupants of this three acres of land, and perhaps other persons in the neighborhood, has been in the habit for a number of years of using a path which crossed this lot of ground and ran along the edge of the railroad embankment or cut a short distance to Hull's crossing; De Board using the path chiefly to go over and get water from a spring on the north side of the railroad. In the afternoon of December 6, 1892, De Board was found in the ditch at the bottom of the railroad embankment or cut, just under where the path ran along on the edge of the embankment, and near the side and at the end of the cross ties of the company's railroad, so much injured that he could not stand alone, and was carried to the house of his son-in-law, the plaintiff in this case, where he, from his injuries, died,: is alleged, some time in the following January. Tliis suit was brought by his personal representative at the first March rules, 1893, and the declaration filed charges that De Board's death was caused by the careless and negligent action of the plaintiff in error, through its agents or employes, in removing rock and earth from underneath the path in question, leaving the surface of the path unsupported, and thus making a trap or pitfall for any one passing over or along the path, whereby De Board, in passing along the path, which he had been doing for a number of years past, broke through and fell upon the company's railroad track below, and received the injuries from which he afterwards died. At the trial of the case the court below instructed the jury as follows: "No. 1. The jury are the triors of the facts as to whether or...