Richmond & D. R. Co v. Scott

• Decision Date: 31 March 1892
• Citation: 88 Va. 958,14 S.E. 763
• Court: Virginia Supreme Court
• Parties: Richmond & D. R. Co. v. Scott.

14 S.E. 763

88 Va. 958

Richmond & D. R. Co.

v.Scott.

Supreme Court of Appeals of Virginia.

March 31, 1892.

Injuries to Passenger — Projection of Limbs from Car Window — Contributory Negli-gence.

1. The slightest voluntary projection of the limbs of a passenger from the window of a moving car constitutes contributory negligence, preventing a recovery on his part in case of injury, without regard to the question of negligence in the carrier in failing to take precautions against such accidents.

2. On the question whether plaintiff voluntarily put his arm out of the car window, or whether it was cast out by a lurch of the train, and came in contact with a bridge through which the car was passing, it appeared that the rail on plaintiff's side was one-half inch lower than the other, that neither plaintiff nor the other passengers were moved from their seats by the lurch complained of, that plaintiff immediately after the injury said that he got his arm hurt by putting it out of the car window, and that the top of the car did not touch the bridge, as it must have done in case of a violent lurch. Held insufficient to show involuntary projection of plaintiff's arm from the window, and that a verdict in his favor must be set aside.

Action by one Scott against the Richmond & Danville Railroad Company. From a judgment for plaintiff for $2,000, defendant appeals. Reversed.

B. B. Muntord, for plaintiff in error.

W. W. Henry, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Charlotte county, rendered on the 28th day of March, 1890. The action is trespass on the case by the defendant in error against the plaintiff in error for damages for injuries received by him while riding as a passenger on the train of the plaintiff in error on the loth day of February, 1888. The declaration of the plaintiff contained three counts, and the defendant in the circuit court demurred thereto, and to each count thereof; which demurrer the court overruled, the evidence was taken and Instructions asked on both sides, and refused by the court, and other instructions given by the court of its own motion, and the defendant excepted. The verdict was in favor of the plaintiff, and the defendant moved the court to set aside the verdict and grant a new trial, which motion the court overruled, and certified the evidence; and the defendant having duly excepted and filed bills of exceptions to the rulings of the court against it in refusing to admit certain evidence offered by it, in refusing its instructions and giving others, and in overruling its motion to set aside the verdict and grant to it a new trial, applied for and obtained a writ of error to this court.

The first error assigned here is as to the action of the circuit court of Charlotte county in overruling the defendant's demurrer to the plaintiff's declaration, and to each count thereof. The first count, and also the second count, sets forth that the plaintiff, on the 15th day of February, 18S8, was being carried as a passenger on the road of the defendant. Sitting near an open window of the car, by a lurch of the train caused by uneven condition of the rails, one being lower than the...