Rangeley's Adm'r v. Southern Ry. Co
| Decision Date | 31 March 1898 |
| Parties | RANGELEY'S ADM'R. v. SOUTHERN RY. CO. |
| Court | Virginia Supreme Court |
Accident at Railroad Crossing —Degree of Care—Instructions—Contributory Negligence.
1. While the same degree of care is not required of one approaching a railroad crossing where, by a city ordinance, gates are required to be kept to give warning of approaching trains, yet he must exercise that degree of care which an ordinarily prudent man would exercise under like circumstances before going on the track.
2. An instruction that, though defendant railroad company was guilty in not having a servant to lower gates at a crossing on the approach of trains, as required by a city ordinance, yet it did not relieve plaintiff from exercising "care and caution" to avoid injury from the approaching train, is not defective in that the words "care and caution" are not defined, where the next sentence of the instruction stated that it was the duty of plaintiff, before attempting to cross the track, to look in both directions, and listen for approaching trains, and that, if he stepped on said track without looking and listening, or stood in such close proximity to the track as to be struck by said train, he was guilty of such contributory negligence as precludes recovery.
3. Where there was no evidence that defendant knew plaintiff was on the track before he was run over, and it was shown that he was a young man in possession of all his faculties, it was not error to refuse to charge that defendant was liable if it could have avoided the injury after it discovered, or could have discovered by the use of ordinary care, the peril of plaintiff.
4. Giving an instruction assuming that plaintiff was standing on or near the track when hit by defendant's train is not prejudicial error where the uncontradicted evidence showed that he was either standing on or near the track when struck, or had stooped down to light a match.
5. It appeared that deceased, on the night of the accident, left a restaurant within 10 feet of the track, and went to a point on or near the track, and stood there, talking, when struck by the train; that the night was dark, but the locality was well lighted; that the track was straight, with nothing to obstruct his view; that the train was being backed up at a speed of not more than five miles per hour, and the engine bell was and had been ringing when he was struck and injured. Held, to show such contributory negligence as barred recovery, even though defendant was guilty of negligence in the management of its train and in failure to guard the crossing as required by a city ordinance.
Appeal from corporation court of Danville.
Action by J. E. Rangeley, administrator of E. W. Rangeley, deceased, against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.
Berkeley & Harrison and Peatross & Harris, for appellant.
B. B. Munford, for appellee.
This action was brought to recover damages from the defendant company for running one of Its trains over the plaintiff's intestate at a street crossing in the city of Danville, and causing his death. Upon the trial of the cause a verdict and judgment were rendered in favor of the defendant, and to that judgment this writ of error was awarded.
Three grounds of error are assigned. The first is to the action of the court in refusing to give instruction No. 5 offered by the plaintiff in error.
That instruction, in effect, informed the jury that a person approaching a railroad crossing where gates are required to be kept and lowered upon the approach of trains has the right, when he sees that the gates are not lowered, to presume that no train is approaching, and that he is under no obligation to use his senses to ascertain whether or not a train is approaching.
While the same degree of care may not be required of a traveler approaching a railroad crossing where gates or other devices are used for the purpose of warning travelers of approaching trains, still the traveler must use his senses. He must exercise that degree of care which an ordinarily prudent man would exercise under like circumstances before going upon the track. Kimball v. Friend's Adm'x, 95 Va. —, 27 S. E. 901, and authorities cited.
The instruction was plainly erroneous and was properly refused.
The second assignment of error Is to the action of the court in giving two instructions asked for by the defendant. The first of these instructions is in these words:
"The court instructs the jury that, though they may believe from the evidence that an ordinance of the city of Danville required the...
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