Richmond Passenger & Power Co v. Racks' Adm'r

• Decision Date: 11 June 1903
• Citation: 44 S.E. 709,101 Va. 487
• Court: Virginia Supreme Court
• Parties: RICHMOND PASSENGER & POWER CO. v. RACKS' ADM'R.

44 S.E. 709

101 Va. 487

RICHMOND PASSENGER & POWER CO.

v.RACKS' ADM'R.

Supreme Court of Appeals of Virginia.

June 11, 1903.

STREET RAILROADS—INJURY TO TRESPASSER —EVIDENCE.

1. Evidence is inadmissible, in an action against an electric railroad for injuries to a

person on the track, to show the distance in which a car could be stopped, which is entirely different from that by which the injury was caused, and differently equipped.

2. No duty is owing by a railroad company to a trespasser on its track, except, after it knows of his danger and peril, to exercise reasonable care to avoid injuring him.

Error to Law and Equity Court of City of Richmond.

Action by Racks' administrator against the Richmond Passenger & Power Company. Judgment for plaintiff. Defendant brings error. Reversed.

H. Taylor, Jr., for plaintiff in error.

Wm. L. Royall, for defendant in error.

CARDWELL, J. Royall Racks, administrator of Frances Racks, deceased, brought his suit in the law and equity court of the city of Richmond, and recovered a judgment against the Richmond Passenger & Power Company for the sum of $500 damages by reason of the death of the said Frances Racks, caused; as alleged, by the negligence of the defendant.

The circumstances under which the plaintiff's intestate lost her life are as follows:

On the afternoon of March 2, 1902, she, accompanied by her daughter, about 13 years of age, and two other small colored girls, walked out from her home, in the city of Richmond, to look at the high water in the river, and in returning home they were diverted from their route by boys throwing stones at them, and wandered away into the county of Henrico and got lost. About dark they found themselves upon the county road leading from Richmond City to Seven Pines, in the county of Henrico, upon which the defendant's track is laid, and on which it operates electric cars for the transportation of passengers between Richmond City and Seven Pines, and they undertook to follow this road back to Richmond. After going a short distance the party discovered some one with a lamp near the road, and called to him to know the way they should go in order to reach Richmond, and were told to "follow that road; that will put you to Richmond, " or "to keep the county road and go straight ahead." A short way from where these instructions were received, the county road deflects to the north for the purpose of crossing a stream that has high banks directly in front of the place of deflection, whilst the electric railroad runs straight along, and crosses the stream upon a trestle, which is about 60 feet high and 415 feet long. This trestle has no walkway upon it, but a person crossing it must step from joist to joist, the joists being about 18 inches apart, with nothing between them, or under the spaces between them; and there is not room enough on either side of the railway track for a person to stand while one of the defendant's electric cars is passing. Upon reaching the point where the county road and railway track separate, the deceased, with the little girls accompanying her, followed the railway track; and upon reaching the trestle, and finding that they could not walk across it, they got on their knees and hands, and attempted to make their passage over it by crawling from joist to joist; and, when they had gotten beyond the middle of the trestle, one of the defendant's electric cars on its return from Seven Pines to Richmond ran upon and over them, killing the deceased, Frances Racks, at a point about 65 feet from the western end of the trestle.

The approach of the railway track from the east of the trestle is on a down grade, while the trestle itself is level; and upon approaching the trestle the current of electricity is turned off, and the car allowed to roll of its own motion until it reaches about midway of the trestle, when the current is gradually turned on again, to restore sufficient speed to ascend the grade beginning at the west end of the trestle.

It is not controverted that under these circumstances the deceased was a trespasser, and no duty was owing to her by the defendant, except, after it knew of her danger and peril, to exercise reasonable care to avoid injuring her; and therefore the only question in the case is whether or not the motorman in charge of the car did all that he could do in the exercise of reasonable care to stop his car after he discovered her peril.

The undisputed facts proved are that the car of the defendant company which ran upon the deceased is about 42 feet long; that the night of the accident was very dark and very damp—"almost raining"; and that, by reason of the dampness, the track was in the very worst of all conditions for stopping the car.

With the view of proving the distance within which the car might have been stopped, the plaintiff introduced several expert witnesses—among them, T. E. Felt, superintendent of the Richmond & Petersburg Electric Railway Company, who testified In regard to stopping the cars on his road; and, when recalled a second time for examination, he was permitted, in answer to a question by plaintiff's counsel, over the objection of the defendant, to state that when the current of electricity has stopped the wheels of one of his cars from revolving, or the wheels are made to reverse, so that the car is moving only by its own momentum, it would stop in 40 feet Evidence having been introduced as to the construction and equipment of the cars of the defendant operated on the Seven Pines Road, showing that they had entirely different machinery from the machinery of the cars on the Richmond & Petersburg Electric Railway, as described by the witness Felt, and that no comparison could properly be made between the equipment or appliances upon the cars operated upon the respective roads, the defendants moved the court to exclude the testimony of Felt, as to stopping cars, which mo-tion was overruled, and this ruling is made the foundation of the defendant's first bill of exceptions.

The court is of...