Norfolk & W. R. R. Co. v. Ferguson

• Decision Date: 31 July 1884
• Citation: 79 Va. 241
• Court: Virginia Supreme Court
• Parties: N. & W. R. R. CO. v. FERGUSON.

79 Va. 241

N. & W. R. R. CO. v. FERGUSON.

Supreme Court of Appeals of Virginia.

July 31, 1884

Error to judgment of circuit court of Washington county rendered 23d May, 1883 in an action of trespass on the case wherein George B. Ferguson was plaintiff and the Norfolk and Western railroad company was defendant. The object of the action was to recover compensation for an injury which, he alleged, had been received by him whilst a passenger on the company's freight train from Bristol to Marion, in August, 1881, by reason of the negligence of the company's agents in so running said train as to throw him out of the open side door of the caboose. The action was tried by a jury who rendered a verdict for the plaintiff and assessed his damages at $5,250. The defendant moved for a new trial on the ground that the verdict was contrary to the law and the evidence, which motion was overruled; and judgment was entered accordingly and the defendant obtained from one of the judges of this court a writ of error and supersedeas to the judgment. The opinion states the facts.

Fulkerson & Page, for the plaintiff in error.

Campbell & Trigg, for the defendant in error.

OPINION

FAUNTLEROY J.

The facts of the case, as disclosed by the record, are: that the plaintiff, George B. Ferguson, became a passenger on the 1st day of August, 1881, from Bristol to Marion on a caboose car attached to a freight train upon the Norfolk & Western railroad. When he entered the caboose, at Bristol, he took a seat in a chair, near an open sliding side door of the caboose. The chair was the conductor's chair, as the plaintiff knew. When the train reached Abingdon the plaintiff ascertained, from the conductor, how long a time it would stop there, and got off the train and went to a saloon and obtained a drink of whiskey. He returned to the caboose, took the same seat previously occupied by him, and so remained till the train reached a point some three or four miles east of Abingdon, at or near to a place in the said road called Hagy's cut, where the train had to go around a short curve and down grade, when plaintiff fell or was thrown out of the caboose, through the side door, near the edge of which he was sitting, and fell down an embankment breaking his ankle and sustaining other heavy and severe injuries, for which he instituted this action of trespass on the case, and laid his damages at $20,000.

The declaration, which is in due form and was not demurred to charges that, on the 1st day of August, 1881, the plaintiff, at the special instance and request of the defendant, became and was a a passenger in said caboose, to be safely carried thereby on a certain journey from said depot at Goodson, to the defendant's depot at Marion, as aforesaid, for a certain fare and reward to the said defendant in that behalf, and the defendant received the said plaintiff as such passenger; and, thereupon, it became and was the duty of the defendant to use due and proper care that the plaintiff should be safely carried by the said caboose on said journey. Yet the defendant, not regarding his duty in that behalf, did not use due and proper care that the plaintiff should be safely carried by said caboose on said journey; but, wholly neglected so to do, suffered said engine and tender and cars thereto attached to be forced along said railway so rapidly, and to be managed and conducted so recklessly, unskilfully and negligently, that by reason thereof, the plaintiff was thrown from said caboose with such force and violence upon and against the ground, that he was thereby, then and there, rendered insensible, and one of his legs was broken and otherwise greatly bruised and injured, and one of his ankles was dislocated, tearing loose the ligaments on the inside of the ankle joint, and displacing all of the smaller bones of the joint, and his back and one of his hips were strained, bruised and injured, causing him great pain, and the blood was forced from his mouth and nose, and in this condition he was left and permitted to remain by defendant from about 11 o'clock A. M. to about 3 o'clock P. M., exposed to the burning rays of the sun, so that he suffered extreme mental and physical pain and anguish; and, also, by means of the premises, the plaintiff was otherwise greatly bruised, wounded, hurt and injured, and became and was sick, sore, lame and disordered, and so continued for a long space of time, to-wit: hitherto and still so continues, & c., & c., to the damage of the plaintiff $20,000.

There is but this one count in the declaration.

At the October term, 1881, of the said court, the defendant filed a plea of not guilty, upon which plea issue was taken, and at the May term, 1883, of said court, the cause was tried by a jury upon the evidence and instructions given by the court, and a verdict rendered in favor of the plaintiff for the sum of $5,250; and, thereupon, the defendant moved the court to set aside the said verdict and grant it a new trial, because the same was contrary to the evidence and the instructions of the court, and because the same was not sustained by the evidence, and because the damages assessed by the said verdict were excessive; which motion the court overruled, and entered up judgment for the plaintiff upon the verdict aforesaid.

The evidence, as stated in the bill of exceptions, is certified by the court in the form of a certificate of evidence rather than as a certificate of facts; and upon the established rule, this court in determining the question whether the circuit court erred in overruling the motion to set aside the verdict of the jury, and to grant a new trial, must reject all the evidence introduced by the plaintiff in error (the exceptor in the court below), which is in conflict with that of the adverse party, and give full faith and credit to the testimony introduced by the adverse party, though it is within the province of this court to determine whether the certificate should be treated as one of facts or evidence. Read's Case, 22 Gratt. 929.

But upon the most rigid application of the rule which excludes the evidence of the plaintiff in error in this case, we think that the evidence of the defendant in error (who was the plaintiff in the trial court), as well that given by himself, as that given by the witness whom he introduced, plainly shows that but for the carelessness and contributory negligence of the defendant in error himself the injury would not have occurred.

The defendant in error was severely injured; but there was no accident to the train, or any occurrence whatever, other than the usual and inevitable incidents to the running and management of the freight trains around the curves and down the grades of the road. The evidence shows no negligence or want of...