Richmond & D. R. Co v. Rudd

• Decision Date: 26 January 1892
• Citation: 88 Va. 648,14 S.E. 361
• Court: Virginia Supreme Court
• Parties: Richmond & D. R. Co. v. Rudd.

14 S.E. 361

88 Va. 648

Richmond & D. R. Co.

v.Rudd.

Supreme Court of Appeals of Virginia.

Jan. 26, 1892.

Injury to Employe — Proximate Cause — Contributory Negligence—Excessive Damages-Variance—Waiver.

1. Plaintiff was injured while braking on defendant's road. Defendant's rules prohibited the uncoupling of cars except by the use of a stick, and plaintiff knew of such rules. The conductor told plaintiff to uncouple certain oars. While he was pulling the coupling-pin with his hands, a brakeman, who was left by the conductor to do the signaling, signaled the engineer to reverse the engine, and plaintiff was thrown between the cars, and injured. The uncoupling could not have been done with a stick. Held that, though plaintiff was negligent, the proximate cause of the injury was the negligent conduct of the brakeman in giving the signal. Railroad Co. v. Williams, 9 S. E. Rep. 990, 86 Va. 165, followed.

2. Plaintiff was not guilty of contributory negligence in obeying the conductor.

3. Where plaintiff had both legs and thighs broken, and one leg so badly injured as to necessitate amputation, a verdict for ¥5, 500 was not so excessive as to require a new trial.

4. Where the original summons correctly stated the damages at $15,000, but by inadvertence on the part of the clerk of the court the alias served on defendant stated the damage to be $1,50U, the variance could be taken advantage of, under Code, § 3259, only by plea in abatement.

5. The variance was immaterial, so far as notice was concerned, when the copy served on defendant's agent correctly informed defendant as to the court, the nature of the action, and the name of defendant, and all else could have been learned by an examination of the declaration.

6. If the variance had been properly objected to, it could have been corrected at bar or remand-ed to rules for an alias to issue; and as it was in fact remanded, though for another cause, defendant could not have been prejudiced by such variance.

7. Where the cause was remanded to rules because there was not the 10-days notice required between the day of service on the agent and the return-day, as provided for by Code, § 3227, the objection was waived by defendant's failure to take advantage of it before verdict.

Error to circuit court of city of Rich mond.

Action by F. J. Rudd against the Richmond & Danville Railroad Company to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant brings error. Affirmed.

B. B. Munford, for plaintiff in error.

Meredith & Cock, for defendant in error.

Hinton, J. This is an appeal in an action of tort, in which there was a verdict and judgment in favor of the plaintiff for $5,500.

By the accident the plaintiff had both legs and thighs broken, and one of the legs was so badly injured that it had to be amputated; and from this it will appear that, if he was entitled to recover at all, the verdict cannot be considered as so grossly excessive as to require a new trial.

It is argued for the defendant company, however, that the court erred in failing to quash the alias summons issued in the case. The original summons was sued out of the clerk's office on the 31st day of March, 1888. It correctly stated the damages as $15,000, but, by some inadvertence on the part of the clerk, the copy thereof which was served on the company stated the damages at $1,500. This variance, however, is one which could only have been taken advantage of, under section 3259¹ of the Code, by a plea In abatement, and, that not having been done, the objection comes too late. The mistake as to the amount of damages claimed was immaterial, so far as notice was concerned, for the copy of the summons served correctly informed the company as to the court, the nature of the action, and the name of the defendant, and all else he could have acquired from an examination of the declaration; and, if it had been availed of in the proper way, the court would have allowed it to have been corrected at bar, or have remanded it to rules, and for an alias summons to be issued; and as this has been done, though for a different reason, we fail to see how the company could possibly have been prejudiced. In any event, however, the objection has been waived by the failure of the defendant company to take advantage of it before verdict, since, in our judgment, the cause was remanded to rules because there were not the 10 days, required by section 3227 of the Code, between the day of service and the return, where the service was upon an agent.

The next and only other assignment of error deserving notice is that the circuit court erred in failing to give four instructions asked by the defendant, and in giving the first instruction which it gave. The instructions asked...