Richmond & D.R. Co. v. Morris

• Decision Date: 12 December 1878
• Citation: 72 Va. 200
• Court: Virginia Supreme Court
• Parties: RICHMOND & DANVILLE R. R. CO. v. MORRIS.

72 Va. 200

RICHMOND & DANVILLE R. R. CO. v. MORRIS.

Supreme Court of Appeals of Virginia.

December 12, 1878

M took passage in the caboose of a freight train of the R. & D railroad from W to B, a way station. It was night when the train arrived at B. M had fallen asleep on the way, and when approaching B the conductor awakened him, telling him they were at B. The train went a short distance beyond the freight-house and reception-room without stopping, and when the engine reached the frog on the west side of the freight-house and reception-room, it stopped, and the conductor seeing M still in the caboose asleep, again aroused him. The train stopped about a minute, and M could then have gotten off whilst the train was not in motion. The conductor then went to the other end of the car, and looking back saw that M did not get up. He returned, shook M and told him to get up, or get off, he was at B. Immediately after the waking of M the last time, the conductor went out at the end of the caboose with his lantern in his hand and stood on the stationary platform about two and a half feet from the platform of the car; the train commenced backing, and M got up and walked out to the end of the car and jumped off, not knowing, as he says, which way the car was going; and the caboose car and several others passed over him, injuring him severely. The point where M jumped off was opposite the platform, which extended thirty-five steps west and a much greater distance east of the pump-house, and was that part of the platform at which passengers going east got off; and it was in good condition. There was no chain across the end of the platform in rear of the caboose, and it was not customary to have them on such cars. It was a dark, drizzly night, and the only lights at the station were two lanterns, one in the hands of the conductor and the other in the hands of a servant of the company at the station. The train reached the station behind time--HELD:

1. The company was guilty of culpable negligence, and this negligence was the proximate cause of M's injury. The conductor should not have put the train in motion until M could leave the car; or if put in motion, he should have cautioned him not to attempt to get off until the train was stopped. Instead of this he told him to get off, and the train immediately commenced backing.

2. The company was also in fault in not having stationary lights at the place, and this made it all the more incumbent on the conductor to exercise more than usual care and caution in letting off passengers.

3. But whilst the injury sustained by M is directly traceable to the culpable negligence of the company, the negligence or absence of ordinary prudence and caution on the part of M contributed to his injury; and he is not entitled to recover of the company damages for the injury he sustained.

4. One who by his negligence has brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence also in the same connection, the result depends on the facts. The question in such cases is: 1. Whether damage was occasioned entirely by the negligence or improper conduct of the defendant; or, 2. Whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. In the former case the plaintiff is entitled to recover. In the latter he is not. See Railroad Co. v. Jones, 95 U. S. R. 439.

This was an action on the case in the circuit court of Halifax county, brought in July, 1873, by Moses Morris, against the Richmond & Danville Railroad Company, to recover damages for an injury which he alleged he had sustained by the negligence of the company. There was a verdict and judgment in favor of the plaintiff for $1,500. The defendant took an exception to a decision of the court overruling their motion for a new trial, and obtained a writ of error from this court. The facts are fully stated by Judge Burks in his opinion.

F Smith, H. H. Marshall and Ould &amp Carrington, for the appellants.

Riley and E. B. Flournoy, for the appellee.

OPINION

BURKS, J.

The plaintiff in the court below (defendant in error here) was run over by a train of cars of the Richmond and Danville Railroad Company. His arm was badly crushed, and was amputated, and he was otherwise injured. He brought his action against the company for damages, alleging that the injury was caused by the company's negligence. On the trial of the issue joined on the plea of not guilty the jury gave the plaintiff a verdict and assessed his damages at $1,500. The defendant made a motion for a new trial on the ground that the verdict was contrary to the evidence. The motion was overruled, and the defendant excepted. The bill of exceptions taken contains a certificate of the facts proved on the trial. The case is before us on a writ of error awarded the defendant to the judgment rendered on the verdict in behalf of the plaintiff.

Two questions are presented for decision: First, whether the injury complained of was caused by the negligence of the defendant; and, secondly, if so, whether it was caused solely by such negligence, or by the negligence of the plaintiff concurring with that of the defendant; in other words, whether there was contributory negligence on the part of the plaintiff.

The reports are filled with cases expounding and illustrating the doctrine of contributory negligence, and there is more or less conflict in the decisions, under the diversity of circumstances in the cases. Attempt to reconcile them would be labor to no useful purpose. We shall make no such attempt. We think the law on the subject applicable to such a state of facts as we now have to deal with is correctly laid down by the supreme court of the United States in the recent case of Railroad Co. v. Jones, 95 U. S. R. (5 Otto) 439.

Mr. Justice Swayne, in the opinion of the court delivered by him, said: " One who by his negligence has brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends on the facts. The question in such cases is: 1. Whether damage was occasioned entirely by the negligence or improper conduct of the defendant; or, 2. Whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened."

In the former case the plaintiff is entitled to recover. In the latter he is not. The authorities cited by the learned justice fully sustain the propositions laid down in the opinion.

One being in default, says Lord Ellenborough, will not dispense with using ordinary care for himself. Butterfield v. Forrester, 11 East, 60. If by ordinary care, says Baron Parke, in another case, he (the plaintiff) might have avoided them (the consequences of the defendant's negligence), he is the author of his own wrong. Bridge v. Grand Junction Railway Co., 3 Mees. & Welsby R. 244.

Authorities to the same effect are numerous. One other only besides our own decisions will be referred to. In Railroad Co. v Aspell, 23 Penn. St. 147, 149, Chief Justice Black delivering the opinion of the court, stated the law thus in its application to railroad companies: " Persons to whom the management of a railroad is intrusted, are bound to exercise the strictest vigilance. They must carry the passengers to their respective places of destination and set them down safely, if human care and foresight can do it. They are responsible for every injury caused by defects in the road, the cars, or the engines, or by any species of negligence, however slight, which they or their agents may be guilty of. But they are answerable only for the direct and immediate consequences of errors committed by themselves. They are not insurers against the perils to which a passenger may expose himself by his own rashness or folly. One who inflicts a wound upon his own body must abide the suffering and the loss whether he does it in or out of a railroad car. It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual fault of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained. A railroad company is not liable for an accident which the passenger might have prevented by ordinary attention to his safety, even though...