Norfolk & W. Ry. Co v. Stegall's Adm'x

• Citation: 105 Va. 538,54 S.E. 19
• Court: Supreme Court of Virginia
• Decision Date: 21 June 1906
• Parties: NORFOLK & W. RY. CO. v. STEGALL'S ADM'X.

54 S.E. 19

105 Va. 538

NORFOLK & W. RY. CO.

v.STEGALL'S ADM'X.

Supreme Court of Appeals of Virginia.

June 21, 1906.

1. Death—Action-—Pleading.

Where, in an action for death, the first count of the declaration failed to set forth the circumstances attending the death of plaintiff's intestate in such a manner as to show that the relations existing between the parties imposed a duty on defendant, the negligent breach of which was the proximate cause of intestate's death, it was fatally defective.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Death, §§ 60, 61.]

2. Pleading—Demurrer to Declaration— Several Counts.

Where a declaration containing more than one count is demurred to as a whole, the demurrer should be overruled if any of the counts are good.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 486-490.]

3. Same.

Where there are two or more counts in a declaration or a single count containing several breaches, some well and others ill assigned or containing a demand of several matters, divisible in their nature, some of which are well and others ill claimed, and a demurrer is filed to the whole declaration and to each count thereof or to the several breaches assigned, the demurrer must be sustained to the invalid counts or breaches and overruled as to the others.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 486-490.]

4. Railroads—Persons on Track—Duty to Licensee.

A railroad company does not owe the duty of prevision to a bare licensee on its tracks, nor does it owe him the duty of employing competent servants to manage its trains, or to run them in any particular manner, or a particular rate of speed.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1235-1237.]

5. Same—Declaration.

Where, in an action against a railroad company for death of a bare licensee on the track, the declaration merely alleged that defendant was negligent in pushing its train of cars in front of the engine across the trestle without any lookout on the end of the cars and at a rate of speed forbidden by the city ordinances, the proximate cause of deceased's death was thereby attributed to the combined effect of such breaches, and defendant being under no obligation to deceased, except not to operate its cars in violation of the ordinance, the declaration was insufficient.

6. Negligence—Pleading—Duty.

In an action founded on defendant's negligence, the declaration must directly and positively allege, otherwise than by mere recital, what duty was owing by defendant to plaintiff, the failure to discharge which caused the injury complained of and its breach, or aver such facts as will show the existence of the duty and its breach.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 174, 175, 182-184.]

Error to Corporation Court of Bristol.

Action by Stegall's administratrix against the Norfolk & Western Railway Company. From a judgment in favor of plaintiff, defendant brings error. Reversed and remanded.

Fulkerson, Page & Hurt, for plaintiff in error.

J. S. Asbworth and W. F. Rbea, for defendant in error.

WHITTLE, J. This action of trespass on the case was brought by the defendant in error to recover damages for the death of her intestate, which is attributed to the negligence of the plaintiff in error.

There was a verdict and judgment for the plaintiff in the trial court, and the defendant brings error.

The first assignment of error questions' the action of the court in overruling the demurrer to the declaration. The declaration contains two counts, and the demurrer is to the entire declaration and to each count thereof, and is accompanied by a statement in writing of the grounds of demurrer relied on. Va. Code 1904, § 3271.

The first count wholly fails to set forth the circumstances attending the death of plaintiff's intestate in such manner as to show that the relations existing between the parties were of a character to impose a duty upon the defendant, the negligent breach of which was the proximate cause of his death, and is plainly insufficient. N. & W. Ry. Co. v. Wood, 99 Va. 156, 37 S. E. 846; Hortenstein v. Va. Carolina Ry. Co., 102 Va. 914, 47 S. E. 996.

The recent case of Virginia & North Carolina Wheel Co. v. Harris, 103 Va. 708, 49 S. E. 991, —citing a number of Virginia decisions in point—illustrates the rule that "a demurrer to a declaration as a whole raises the question whether the declaration sets out sufficient matter to sustain the action; and if there are several counts in the declaration and any of them is good, the demurrer should be overruled."

But it is also a well-settled rule of pleading and practice that where there are two or more counts in a declaration, or a single count containing several breaches, some well and others ill assigned; or containing a demand of several matters, divisible in their nature, some of which are well and others ill claimed, and there is a demurrer to the whole declaration and to each count thereof, or to the several breaches assigned, the demurrer must be sustained to the faulty counts or breaches, and overruled as to such counts or parts of the declaration as are not amenable to objection. 1 Rob. Pr. (old) pp. 281, 282; 1 Chit. Pl. (14 Am. Ed.) 664; 2 Tuck. Com. (3d Ed.) p. 261; 4 Min. Inst. pt. 2 (3d Ed.) p. 1107; 1 Bar. L. Pr. (2d Ed.) pp. 456, 457.

In accordance with these authorities, the order of the court overruling the demurrer to the first count of the declaration consti tutes error for which the judgment would have to be reversed, even though the second count set out a good cause of action.

We are of opinion, however, that the second count is likewise bad. It alleges that the defendant's side track extends over a trestle or bridge spanning a creek in the city of Bristol, which affords the only available means to pedestrians of crossing the stream at that point, and which, with the knowledge and consent of the defendant, was constantly used by the public for that purpose; that at the...