Norfolk & W. Ry. Co v. Rhodes

• Decision Date: 14 January 1909
• Citation: 109 Va. 176,63 S.E. 445
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. RHODES.

63 S.E. 445

109 Va. 176

NORFOLK & W. RY. CO.

v.RHODES.

Supreme Court of Appeals of Virginia.

Jan. 14, 1909.

1. Carriers (§ 318^*) — Injuries to Passengers—Res Ipsa Loquitur.

The derailing of a train by collision or otherwise is prima facie evidence of negligence of the carrier as to a passenger.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1311, 1312; Dec. Dig. § 318.*]

2. Carriers (§ 318*)—Injuries to Passengers—Unusual Movement of Train—Res Ipsa Loquitur.

Where the movement of a train so unusual and extraordinary, as to break a passenger loose from his hold on the water-closet in the car, and of such a nature that the accident could not have happened without negligence, a prima facie presumption of negligence arises.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1307-1314; Dec. Dig. § 318.*]

3. Appeal and Error (§ 536*)—Bill of Exceptions — Identification of Evidence — Sufficiency.

A statement in a bill of exceptions that all of the evidence introduced, both for plaintiff and defendant, is found in a typewritten booklet marked "A, " and is adopted by the court as the evidence introduced, and the court certifies that the booklet A contains all the evidence offered by the parties, and concluding with the statement that, to the action of the court in refusing to set aside the verdict the defendant excepted and prayed that "this its bill of exceptions might be signed, sealed, and made a part of the record, which is accordingly done, " sufficiently identified the evidence, and made it a part of the record.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 536.*]

4. Carriers (§ 280*)—Injuries to Passengers—Carrier as Insurer of Passenger's Safety.

Though a carrier is liable for injuries to a passenger resulting from the slightest negligence on its part, it is not an insurer of his safety against all contingencies except those arising from the act of God and the public enemy, as are carriers of goods; and for an injury hap-pening to the person of a passenger without fault on the carrier's part it is not responsible.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1085; Dec. Dig. § 280.^*]

5. Carriers (§ 316*)—Injuries to Passengers—Presumptions.

In order to recover against a carrier for injuries to a passenger, it is always necessary to prove negligence, either directly, or by evidence of facts from which it may be reasonably presumed.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1283; Dec. Dig. § 316.*]

6. Carriers (§ 297*)—Carriage op Passengers—Assumption op Risks by Passenger.

The lurching or rocking of trains in passing rapidly over curves on the road, resulting from the natural laws of motion, cannot be prevented, and is one of the risks which a passenger assumes.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1204; Dec. Dig. § 297.*]

7. Carriers (§ 318*)—Injuries to Passenger —Evidence—Sufficiency.

In an action for injuries to a passenger, caused by being thrown to the floor while standing in a train without holding on to anything, the mere expression of opinion by plaintiff and one of his witnesses that the rocking or lurching of the train when plaintiff was injured was unusual and extraordinary was insufficient to show negligence on the part of defendant, where the witnesses testified to no facts showing that it was unusual or extraordinary, as the mere fact that plaintiff was thrown to the floor did not show that the movement of the train was unusual.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1307, 1309, 1310; Dec. Dig. § 318.*]

8. Carriers (§ 318*)—Injuries to Passenger —Evidence—Sufficiency.

In an action for injuries to a passenger, evidence held insufficient to show negligence of defendant.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 318.*]

Error to Circuit Court, Botetourt County.

Action by G. E. Rhodes against the Norfolk & Western Railway Company. From an order overruling defendant's demurrer to the declaration, defendant brings error. Reversed.

T. W. Reath, M. McCormick, and E. M. Pendleton, for plaintiff in error.

Glasgow & White and W. S. Hopkins, for defendant in error.

BUCHANAN, J. This is an action to recover damages for personal injuries suffered while the plaintiff (the defendant in error) was being carried as a passenger by the Norfolk & Western Railway Company.

The action of the court in overruling the demurrer to the amended declaration is assigned as error.

The objection made to the declaration is that it does not state the facts relied on to show that the defendant company was guilty of negligence.

The first count charges generally that the defendant was negligent in the operation of its train, the second that it did not have a proper roadbed or track, and the third that its locomotive, cars, and coaches were defective. It is true that it is not alleged in what particular or respect the defendant failed to operate its train properly, or what the defect in its roadbed, track, locomotive, cars, or coaches was, but each count contains the following averment:

" * * * That defendant did not use due and proper care as the law required, and while the plaintiff was on said car, and was standing by the water-closet, using at the time due and ordinary care, and was holding onto the side of the water-closet, and about to open the door, and by its negligence, carelessness, and default in failing to operate, manage, and run its said steam locomotive, car, or coach, at and between the said points mentioned, caused and permitted its said car or coach to be violently jerked, turned, and thrown to one side with a lurch, said jerking, turning, and lurching being in a most violent, dangerous, and unusual and negligent manner, and so violent, unusual, and unexpected as to break the plaintiff loose from his hold on the water-closet and throw him first in one direction and then in another down and against the seat of the car and break his cheek bone."

The general rule is that the happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on the part of the carrier, and that (the passenger himself being in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the Injury was unavoidable by human care and foresight. B. & O. R. Co. v. Wightman, 29 Grat. 431, 26 Am. Rep. 384; Same v. Noell, 32 Grat 394; Gleeson v. Virginia Mid., etc., R. Co., 140 U. S. 435. 443, 11 Sup. Ct. 859, 35 L. Ed. 458; 2 Cooley on Torts, pp. 1415-1419; 3 Hutchinson on Carriers, §§ 1413, 1414.

This seems to be the universal rule where the injury is caused by the derailing of the train by a collision, or other accident to the car in which the passenger is riding. See authorities cited above.

Whether or not, when an injury to a railway passenger is shown, the cause of which is not at once apparent, there is a presumption that the injury was due to some want of care in the carrier or its agents or servants need not be considered, since the facts and circumstances attending the injury, as charged in the declaration, show that the movement of the train was so unusual and extraordinary as to break the plaintiff loose from his hold on the water-closet, and that the accident could. not well have happened without negligence on the part of the carrier, and therefore raise a prima facie presumption of negligence on its part. See Hutchinson on Car., § 1414; 2 Cooley on Torts, pp. 1417-1421; 4 Elliott on Railroads, § 1644; Burr v. Penn. R. Co., 64 N. J. Law, 30, 44 Atl. 845; Hite v. Metropolitan St. Ry. Co., 130 Mo. 132, 31 S. W. 262, 32 S. W. 33, 51 Am. St. Rep. 555; Stoody v. Detroit, etc., Ry. Co., 124 Mich. 420, 83 N. W. 26.

The other assignments of error are based upon five bills of exception, none of which, it is insisted by the plaintiff, are properly parts of the record. In the view we take of the case it is unnecessary to consider these objections, except so far as they apply to bill of exceptions numbered 5.

The verdict of the jury was rendered at the December term, 1907, of the court. At that term the order of the court shows that a motion was made to set aside the verdict, and time taken until the next term by the court for its decision. At the next term (March, 1908) the order of the court shows that it overruled the motion to set aside the verdict, entered a final judgment, and granted leave to the defendant "to tender its bill of exceptions to the judge of this court in vacation within 30 days after the end of this term, which bill of exceptions, when signed, shall be a part of the record in this cause." The bill of exceptions No. 5, which it is claimed was signed by the judge pursuant to that order, contains the following statement: "Be it remembered that on the trial of this case on the —day of December, 1907, the plaintiff, in order to maintain the issue on his part, introduced the following evidence: (Here insert it.) And the defendant, to maintain the issue on his part, introduced the following evidence: (Here insert it)—all of which evidence, both for the plaintiff and the defendant, is found in a typewritten booklet now marked 'A, ' and is adopted by the court as the evidence introduced by the plaintiff and the defendant, and the court certifies that the said booklet A contains all the evidence that was offered by the plaintiff and defendant." After stating what was done in submitting the...