Norfolk & W. Ry. Co v. Dean's Adm'x.*

• Citation: 107 Va. 505,59 S.E. 389
• Court: Virginia Supreme Court
• Decision Date: 21 November 1907
• Parties: NORFOLK & W. RY. CO. v. DEAN'S ADM'X.*

59 S.E. 389

107 Va. 505

NORFOLK & W. RY. CO.

v.DEAN'S ADM'X.^*

Supreme Court of Appeals of Virginia.

Nov. 21, 1907.

1. Railroads —Injuries to Persons on Track—Discovery of Danger.

Where a railroad company knows of the dangerous position of a person on its track, and that such person is unconscious of his peril and will take no measures for his own protection, it is its duty to do all that can be done, consistent with its higher duties to others, to avoid running such person down, regardless of his own negligence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1275.]

2. Same—Question for Jury.

Where, under the evidence, reasonable men may differ as to whether a railroad did all that was required of it to avoid running a person down after discovery of his peril, the case is for the jury.

[Ed. Note.—For cases in point, see Cent Dig. vol. 41, Railroads. § 1375.]

3. Same—Right to Presume That Persons on Track Will Leave.

A railroad company has the right to assume that a grown person, in the apparent possession of all his faculties, seen on its track will get out of the way of an approaching train, and is not liable unless, after the company in the exercise of ordinary care could have discovered that he was not going to get off the track, it could have avoided running him down.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1280.]

4. Same—Sufficiency of Evidence.

Evidence in an action for the death of plaintiff's intestate on the track held to show that the railroad did all that was required of it to avoid running him down after discovery of his peril.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1359.]

Error from Circuit Court, Tazewell County.

Action by one Dean's administratrix against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Henry & Graha and S. D. May, for plaintiff in error.

Wm. H. Werth and Chapman & Gillespie, for defendant in error.

KEITH, P. Dean's administratrix sued In the circuit court of Tazewell county to recover damages for the wrongful death of her intestate, and filed a declaration containing two counts, to which the defendant company demurred, and the court sustained the demurrer to the first, but overruled it to the second count. Thereupon the plaintiff filed another count, which was demurred to, and the demurrer overruled. A trial was then had, which resulted in a verdict of the jury, subject to the defendant's demurrer to the evidence. Upon that verdict the court rendered judgment in favor of the plaintiff, and the case is before us upon a writ of error awarded by one of the judges of this court.

The circuit court filed a written opinion in support of its judgment, in which it says that the first count in effect charges that the place on defendant's track where plaintiff's intestate was killed was daily used by a large number of people, which fact was known to the defendant company, and thereby it became and was the duty of the defendant company to keep a lookout for persons on its track, so as to discover and not to injure them; that it neglected this duty, and by reason of this neglect plaintiff's intestate was killed.

"The second count, " continues the court, "avers, in effect, that after the crew in charge of the defendant company's train had discovered intestate was on the track in front of said engine, and that he was unconscious of his danger and would take no measure to protect himself from the danger, the said crew in charge of said engine failed to use any measures whatever to prevent injuring plaintiff."

The circuit court was of opinion that there could be no recovery upon the first count, because of the contributory negligence of theperson injured, but rests the case solely upon the second count In the declaration, in which the case presented is that, after it became apparent to the crew in charge of defendant company's train that intestate of plaintiff was on the track in front of the engine, that he was unconscious of his danger, and would take no measures to protect himself, the crew failed to use any measure to prevent the accident. Such being the issue to be determined, it is needless to consider so much of the evidence as relates to the use of the track as a public passway, or as to whether or not the person injured was a licensee or a trespasser. He was a human being, and when his dangerous position was seen and known, and that he himself was unconscious of his peril and would take no measures for his own protection, it became the duty of the railroad company to do all that could be done consistent with its higher duties to others to save him from the consequences of his own act, regardless of whether he was guilty of contributory negligence or not. Seaboard & Roanoke R. Co. v. Joyner's Adm'r, 92 Va. 355, 23 S. E. 773.

This being the narrow issue to be decided, it becomes necessary to consider the evidence bearing upon it with care, and if, as a result of that inquiry, it shall appear that there is room for a difference of opinion among reasonable men, then, in accordance with the decision of the Supreme Court of the United States in Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, and with Kimball & Pink, Rec'rs, v. Friend's Adm'r, 95 Va. 125, 27 S. E. 901, which have been so frequently followed in this court, the case is one proper for a jury, and the demurrer to evidence should have been overruled.

At the point of the accident the railway Is double-tracked; one track being used by trains moving toward the west, and the other by trains moving toward the east. It was the habit of pedestrians who used these tracks for a passway to walk upon them in a direction opposite to that in which trains were accustomed to move, so that the train using the track would be in front of the person upon the track and moving toward him. A man walking west, therefore, would be upon the track used by east-bound trains, while a man going toward the east would be upon the track used by trains going in the opposite direction. But, while this was the customary and usual way of moving the trains upon the tracks, it not unfrequently happened that a train going west would be upon the east-bound track, or a train going east upon the west-bound track. In other words, the tracks were used at this point as was most convenient in the shifting and movement of trains, in order to perform the various duties of the railroad company. Upon the morning of the accident there was a freight train, consisting of 55 or 60 cars, drawn by two engines, moving west upon the west-bound track; and there was a light engine and tender, moving tender in front, and also going west, upon the east-bound track. As they approached a bridge over Bluestone river, Dean, the man who was killed, was seen walking upon the east-bound track in front of the tender and near the west end of the bridge.

The first witness examined by defendant in error was A. W. Tabor. He did not see the accident, and his evidence bears only upon the locality, which we have endeavored to describe, its use by people, and the result of certain experiments which he tried, tending to show how far down the track a man sitting upon the bumper of the tender of the engine that caused the accident could have seen a man standing on the track; but his evidence is not very material, because, as has been already said, there is no doubt that the trainmen saw the deceased, and it may be conceded that they saw him at such a distance as that the engine might have been stopped without doing him any injury, if it further appears that he was then in apparent danger and was not likely to take any measures for his own protection.

The first witness for defendant in error who saw the accident was Whitworth. He says that on the day in question he was in charge of a coal train that works at Pocahontas at night; that he came to the Flat Top yards and got instructions to take his train to Mullin's Siding, which is about a mile toward the east from Falls Mills, the station near which the accident occurred. Having put his train at Mullin's Siding, as directed, he was returning. In accordance with his orders, to Flat Top yards, and was sitting on the back end of the tank when he noticed a man walking down the track. The engine was moving, it will be remembered, tender in front....