Richmond & D. Ry. Co v. Yeamanb

• Decision Date: 17 April 1890
• Citation: 12 S.E. 946
• Court: Virginia Supreme Court
• Parties: Richmond & D. Ry. Co. v. Yeamanb.

12 S.E. 946

Richmond & D. Ry. Co.

v.Yeamanb.

Supreme Court of Appeals of Virginia.

April 17, 1890.

Railroad Companies — Accident at Crossing— Evidence—Instructions.

1. Plaintiff drove over a railway crossing immediately after a passing engine had cleared the track for him. The engine proceeded some 35 or 40 feet from the crossing, where it was coupled to a box-car; the engineer watching plaintiff until he had safely crossed the track. The engine was then reversed, and started backward towards the crossing, when plaintiff's horse took fright, and, unobserved by the engineer, backed the wagon onto the tender. Held, in an action for the injuries sustained by plaintiff, that, as there was no evidence showing want of care on the part of the railroad employes, it was error to charge that the company was bound to exercise special prudence and caution to avoid injury to persons or their property traversing the highway at the crossing.

2. Negligence by the railroad company must be proved;.and it is error to instruct that plaintiff is not bound to do more than to raise a reasonable presumption of negligence on its part.

3. The engineer, having seen plaintiff's horse cross the track without showing the least sign of fright at the engine passing immediately in front of him, had a right to consider all danger to plaintiff's vehicle past; and it is error to instruct that the engineer was bound to take further precautions for its safety.

4. One who has been guilty of negligence proximately contributing to his injury cannot recover, unless defendant neglected to prevent or avert the injury after he became aware of plaintiff's contributory negligence.

5. Plaintiff, who drove over the crossing within a few feet of the engine engaged in shift ing a car from one track to another, without informing himself of the direction which the engine would take, and who then proceeded along the highway parallel with and in close proximity to the track, is guilty of contributory negligence, and cannot recover, unless his perilous position was known to the servants ef the railroad company; and it is error to charge that he can recover if, "by the use of ordinary diligence, " his position could have become known to them.

6. Since the engineer was unable, from his position in the cab, to see plaintiff after he had driven over the crossing, and since be could not have anticipatated that plaintiff's horse would balk, a verdict in plaintiff's favor should be set aside for lack of evidence as to defendant's negligence.

Lewis, P., and Hinton, J., dissenting.

Error to corporation court of Danville, C. M. Blackford, for plaintiff in error.

Guy Gilliam and Peatross & Harris, foi

defendant in error.

Faiintleroy, J. The plaintiff in error leases and operates the Virginia Midland Railroad, from Washington city to Danville. The road passes south ward along the east side of the Dan river, through the town of North Danville, and then over a bridge to the right bank of the river into the city of Danville. A county road from Danville towards Halifax county starts from the eastern end of the long wagon bridge which connects Dan ville with North Danville, and runs for several hundred yards down the left bank of the Dan river, and between the railroad track and the river. It then bends off from the river to the left, and, after rising a short elevation to the grade of the railroad, it crosses both the main track and the siding, (or side track,) and then, turning again and rising a slight ascent, runs, for about a hundred feet, nearly parallel with the side track, and then turns off from it over a hill. This road and this crossing are in the corporate limits of North Danville, and the place is called" Barker's Crossing " On the 17th of May, 1888, Thomas B. Yea-mans, who lived a few miles from Danville, in Pittsylvania county, where he had lived on the same plantation all his life, and who was in the habit of coming to Danville frequently by this same road and crossing the railroad ever since it was put there, in 1872 or 1873, at Barker's crossing, came up by this road in a one-horse wagon, with his son 12 years of age, and a load of tobacco for Danville. Having sold his tobacco, he started back towards his home with his son and the empty wagon, about 1 or 2 o'clock in the afternoon. He had crossed over the Dan river on the wagon bridge and moved down the Halifax road, by which he had come, until he got to the place where it bends off from the river and starts up the little rise to the railroad crossing. At that point he saw an engine and tender coming down on the side or shifting track towards the crossing. He did not stop, hut went on slowly, and the engine and tender passed on across his road only six or eight yards in front of his horse and wagon; and he crossed the track immediately as the engine and tender cleared the road for him. The engine and tender went on beyond the crossing some 35 or 40 feet, to wher»there were standing on the siding 15 or 20 box-cars, when it stopped and coupled by its pilot to the box-cars, which being done, the yard conductor got down and ran the length of three cars, and uncoupled the third car from the rest of the long train, and then told the brakeman on the end of the car above him to take off the brake and to signal to the engineer to go back; all which being done, the engine, with the tender in front, moved back in the direction of the crossing. In all the Time of this operation, both going down to the box-cars, and coupling and uncoupling, and signaling, and returning to the crossing, Yeamans, who had crossed over the railroad track immediately as the engine and tender had passed it going down, and was safely over it, had progressed only nine feet, (as he says,) although he was moving all the time, when his horse took fright at the returning engine with the tender in front, and balked, and backed his wagon upon the tender, which struck the wagon, broke it to pieces, threw Yeamans and his son out, injured the horse so as to make him valueless, and mashed Yeaman's hand by being trodden upon by the horse, rendering it practically useless, and otherwise severely hurting him. The boy was not hurt. The engineer saw Yeamans as he approached the crossing with his wagon, without ever pausing, and crossed over the track immediately as theengine passed down, and that his horse was not scared; and he saw Yeamans and his wagon safely over, and watched him till he was safely on his way, and, as he supposed, was going up the hill; all this before he started the engine and tender back with the cars which he was shifting. When he started back he was sitting on the same side of the engine which he occupied when going down; but the engine being reversed, he was reversed from the right side going down to the left side coming back. He looked from his seat along the track before he started back, and kept his eye on the track and watched the crossing and the approaches to the crossing as he came back; but he did not see Yeamans or his wagon, and did not know of his being struck until after the accident, he being on the left or far-off side of his engine, and the tender in front cutting off his view of the road over which he had seen Yeamans safely driving towards his destination, after he had safely crossed over the track as the engine and tender were passing down. The ordinance of the town of North Danville required that any railroad operating in the town should "flag each and every train while crossing any of the public streets or highways." At the time of this accident no flagman was at the crossing. Under these facts the jury gave a verdict in favor of the plaintiff, Yeamans, for $9,000, and the court overruled the motion to set it aside.

The errors assigned are, first, in giving the six instructions asked for by the plaintiff. The first of these instructions, after a very long prelude, instructed the jury that it was the duty of the defendant company in shifting their cars and engines at this crossing "to exercise special prudence and caution to avoid doing injury or damage to persons or their property traversing said highway at the point so crossed by the track of the said railroad, and that any neglect of such precautions as are proper and reasonable, under the peculiar surroundings and circumstances of the locality, constitutes negligence, for which the said defendant company is liable in damages, unless they further believe from the evidence that the plaintiff, by exercise of ordinary care on his part, could have prevented the injury sustained by him." This instruction, while it announces a correct proposition of law, is calculated to mislead the jury in this case, because there is no necessary predication in the evidence to call for or to warrant it. An...