Norfolk & W. Ry. Co v. Henderson

• Decision Date: 16 March 1922
• Citation: 111 S.E. 277
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. HENDERSON.

111 S.E. 277

NORFOLK & W. RY. CO.

v.HENDERSON.

Supreme Court of Appeals of Virginia.

March 16, 1922.

Error to Circuit Court, Campbell County.

Action by Frank A. Henderson, as administrator of the estate of Marian Henderson, deceased, against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

F. Markoe Rivinus, of Philadelphia, Pa., and Howard & Burks, for plaintiff in error.

John L. Lee, of Lynchburg, and M. B, Booker, of Halifax, for defendant in error.

KELLY, P. This action was brought to recover damages for the death of the plaintiff's intestate, Marian Henderson, a child 26 months old, who was run over and killed by one of the defendant's trains. There was a verdict and judgment for the plaintiff, and the defendant assigns error.

The accident occurred about 9 o'clock a. m. on a clear day within the corporate limits of the town of Brookneal in Campbell county. For many years the railway tracks at that point had, with the knowledge of the railway company and its employees been used as awalkway by men, women, and children. Marian Henderson had wandered away from the home of her parents, about 100 yards from the railroad, and was sitting down on or beside the rail. She wore a light-colored dress with a stocking net cap over her head, and was stooping or bending over, with her hands down, as if trying to pick something up from the track. For a distance of nearly 1, 200 feet in the direction from which the train was approaching the track was perfectly straight. In the engine at the time were the engineer, fireman, and two brakemen, and they all testify that they saw the child as soon as the engine reached the straight track, but thought the object was a piece of paper, or, as one of the brakemen said, either a piece of paper or a big white chicken. According to their testimony, they kept their eyes on this object, but did not discover its identity until they were within about 350 feet of the point at which the child was struck. It was then too late to stop the train, but the engineer blew his whistle, applied his brakes in emergency, and did all he could towards saving the child's life.

The speed of the train was about 25 miles an hour, and with prompt action could have been stopped within a distance of about 000 feet. It is thus apparent that there was ample opportunity to stop after the object was first seen and before it was struck, but no chance of doing so after the engineer and others in the engine first discovered the character of the object.

Of course, it is not contended, nor is it to be imagined, that the defendant's employees intentionally ran over the child. Furthermore, it is clear that, if the jury were bound to accept the testimony of these employees as conclusive, the verdict was wrong, and the judgment ought to be reversed. If, as claimed by them, they saw the object as soon as they could see it, and at that time had no reason from its appearance to believe it was a human being, and, in the exercise of the diligence required of them at a place regularly used by men, women, and children, had no reason to believe sooner than they did that it probably was a child, and, after making the discovery, used every reasonable means to avoid the injury, the defendant was not liable. All of these conditions of nonliability were established, if the evidence given by the only persons who could see the situation from the engine was conclusively binding upon the jury. Was it conclusive? The answer to this inquiry must precede the determination of the final and decisive question in the case, which is whether they discovered or ought to have discovered that the object was probably a child in peril before it was too late to take effective measures for its safety.

The law of the case is stated so succinctly and with such approximate accuracy in the instructions given by the court to the jury that they may appropriately be set forth at this point. The instructions as given were as follows:

First, on behalf of the plaintiff:

"The court instructs the jury that, if they believe from the evidence that the engineer in charge of the defendant's train which struck and killed the deceased saw some object upon, the track, which, by the exercise of ordinary care, he could and would have discovered was a child in time to have avoided striking it, and failed to do so, the defendant is liable, and the jury should find for the plaintiff."

This instruction could with propriety have been made a shade more favorable for the plaintiff by inserting the word "probably" before the words "a child."

Second, on behalf of the defendant:

"The court instructs the jury that if they believe from the evidence that while the plaintiff's intestate was lying or sitting on the track she was seen by those in charge of the defendant's train and was thought to be some inanimate object as a bundle or piece of paper; that they continued to look at said object and as soon as they discovered, or by the exercise of ordinary care would have discovered, it to be a child, used reasonable care to prevent injuring her, they must find a verdict for the defendant." (Italics added for purposes of comment indicated infra.)

The insertion of the word "probably" just before the words "a child" would have more accurately defined the duty.

These two instructions, in our opinion, presented to the jury in a clear and helpful manner the theory upon which the plaintiff was entitled to recover if the evidence warranted a recovery, and the theory upon which the defendant was entitled to a verdict if the evidence warranted such a verdict.

We have so often had occasion to comment upon the unwisdom of prolixity and repetition in the giving of instructions that we wish to commend the counsel on both sides for the care which was evidently bestowed upon the preparation of the instructions requested, and to commend the court for the conciseness and clearness with which it submitted the issue to the jury. Instructions of this kind are of real service to the jury in reaching a correct conclusion. As we have said in other cases, it is, of course, sometimes necessary, by reason of the number of issues involved or the varied aspects of the case, to give a number of instructions, but this is not ordinarily true, and ought to be avoided whenever possible, for it must be a matter of common knowledge and experience with the profession that, where the instructions are numerous and lengthy, they are often not digested or comprehended by the jurors, and therefore as often not useful to them.

1. It is somewhat out of the order in which the assignments are dealt with in the petition, but while we are on this subject of instructions we may as well dispose of the errors complained of in that respect.

With reference to the plaintiff's instruction first above recited, the defendant asked the court to add this amendment:

"But the court instructs the jury that the defendant is not liable for an error of judgment in the engineer in failing to identify as a child stooping on the track and practically motionless an object which he took to be a piece of paper before he actually ascertained it to be a child."

The court refused to make this amendment, and the defendant insists that this refusal was erroneous. The amendment might perhaps have been added without impropriety, though even as to this we do not feel entirely confident and in any event there was certainly no error in refusing it. The plaintiff's right to recover depended upon the failure of the engineer to exercise ordinary care, and this principle was embodied in the instruction.

Furthermore, the second instruction, given for the defendant, said that there could be no recovery if those in charge of the train, in the exercise of ordinary care, failed to discover the child in time to avoid the injury. This, in effect, told the jury that an error in judgment, provided the defendant's employees based their judgment upon the situation as it would have appeared to men in the exercise of ordinary care, would not entitle the plaintiff to a recovery. The amendment in question might have unduly emphasized the defense, which was otherwise fully covered by the instruction as given.

With respect to the instruction as offered on behalf of the defendant, complaint is made because the court, before giving the same, added the words "or by the exercise of ordinary care would have discovered, " italicized in the instruction as above set forth. The amendment was clearly proper. The place at which the accident occurred was known to be frequently used by men, women, and children as a walkway, and the employees of the company were under the duty of keeping a lookout for the express purpose of discovering and avoiding injury to persons at that point. Southern Ry. Co. v. Wiley (case of a child 2 1/2 years old, on its hands and knees), 112 Va. 183, 184, 189, 70 S. E. 510. Even in the case of a trespasser this court has held that, after discovering an unknown object on or near the track, though the employees of the company believe it to be inanimate, they have no right to disregard its presence, but must keep a lookout until its character is determined. Washington & O. D. R. Co. v. Jackson's Adm'r, 117 Va. 636, 640, 85 S. E. 496. This simply means that they must exercise ordinary care to discover the identity of the object and this is all that the court told the jury by the amendment.

Complaint is made of the refusal to instruct that, if the plaintiff, who was the child's father, was guilty of negligence in permitting her to stray away from home, such negligence would prevent a recovery in the case for his benefit. Of this it is sufficient to say that there was no evidence in the case which would have justified the giving of such an instruction.

The defendant asked for an instruction as follows:

"The court instructs the jury under no use of the defendant's track by the public as a walkway, as testified to in this case,...