Rudd's Adm'r v. Richmond & D. R. Co.

• Decision Date: 18 June 1885
• Citation: 80 Va. 546
• Court: Virginia Supreme Court
• Parties: RUDD'S ADM'R v. R. & D. RAILROAD CO.

80 Va. 546

RUDD'S ADM'R v. R. & D. RAILROAD CO.

Supreme Court of Appeals of Virginia.

June 18, 1885

Argued at Richmond, and decided at Wytheville.

Error to judgment of circuit court of Nottoway county, rendered 6th April, 1883, in an action wherein Joseph E. Leath administrator of Charles E. Rudd, deceased, was plaintiff and the Richmond and Danville Railroad Company was defendant. The object of the action was to recover damages for the alleged negligent killing of Rudd, an infant aged twelve, by the defendant. At the trial the jury found for the plaintiff $4750 damages, subject to the defendant's demurrer to the evidence. On that demurrer the judgment was for the defendant, and the plaintiff obtained a writ of error from one of the judges of this court.

Opinion states the case.

Edgar Allan, P. W. McKinney and F. S Blair, for the plaintiff in error.

H. H. Marshall, for the defendant in error.

OPINION

FAUNTLEROY, J.

This suit is an action of trespass on the case against the said railroad company for the negligent killing of the deceased Charles E. Rudd, laying the damages at $10,000.

Upon the trial in the court below, after the jury had heard all the testimony for the plaintiff and defendant, the said defendant demurred to the testimony as being insufficient in law to maintain the issue joined, of not guilty; the plaintiff joined in the said demurrer: whereupon the issue was submitted to the jury to say, what damage the plaintiff had sustained by reason of the matters shown in evidence, in case the judgment of the court should be given for the plaintiff; and the jury, after considering the same, returned into court and rendered their verdict, to-wit: " We, the jury, assess the damages of the plaintiff at forty-seven hundred and fifty dollars, ($4750) subject to the opinion of the court upon the demurrer of the defendant to the evidence in this case."

And, thereupon, the court passed judgment sustaining the demurrer of the defendant to the evidence in the case, and dismissed the plaintiff's suit with costs, etc. To which judgment the plaintiff excepted.

The case comes up on a demurrer to evidence, and the single error assigned, is that the circuit court erred in sustaining the defendant's demurrer to the plaintiff's testimony, because said testimony was sufficient in law to render the said defendant company liable for the damages awarded by the jury, by reason of its gross negligence, which was the proximate cause of the death of the deceased.

On the 28th day of May, 1882, the deceased, Charles E. Rudd, a boy 12 years of age, who had been sent by his parents to mind cows in a field running alongside of the track of defendant's railroad, in Nottoway county, Virginia, was run over and killed by a train of loaded and unloaded freight cars, consisting of a locomotive and tender, and thirty-six cars, making a train about 375 yards in length, belonging to and operated upon the said defendant's railroad, in Nottoway county, Virginia, about two miles from Burkeville, in said county, the said Rudd being at the time lying across the said track, apparently asleep. The said train being on a heavy down-grade, had, at the time of the killing, been running without steam, and of its own momentum, for a distance of one and a-half miles, and would have continued so to run for two miles further. The said train turned around a curve in the line of the road, 1118 yards from where the boy was struck, and passed a public crossing 226 yards further on, or 892 yards before reaching the body of the boy. The boy had been repeatedly found on the track, sitting and lying down and asleep, at various times previous to the killing, and had been warned and expostulated with by various persons as to the danger of falling asleep and being run over and killed by the trains. He himself had narrated an escape that he had made from being killed by a passing train when he was lying down by the side of the track asleep, only about a week before he was killed.

It appears, from the plaintiff's evidence, that an experiment made with a boy about 12 years of age, and of the size of the deceased, showed that an object of that size could be seen on the road at the distance of 1118 yards from the curve or turn in the road.

These facts present the case of contributory negligence by the plaintiff; and negligence both contributory and concurring at the time and in the causation of the killing.

The judgment under review having been rendered upon a demurrer to evidence, the familiar and settled rule applies: that the demurrant admits the truth of all the demurree's evidence, and all proper and reasonable inferences therefrom, and waives all his own evidence which is in conflict with or tends to establish a case different from that of the demurree's evidence.

The plaintiff has made his own case; and the gravamen against the defendant is, a charge of gross negligence. The law will not impute it: the plaintiff must prove it.

The defendant company was in the exercise of its lawful rights and the discharge of its public duties, and was upon its own exclusive premises; while the plaintiff's intestate was unlawfully and negligently upon the track of the defendant--not at a station, or a public crossing; but at a portion of the track where defendant had a right not to expect or apprehend any person to be-- certainly not lying down and asleep.

A railroad company does not bear the same legal relation to a stranger, trespassing upon its road-bed and highway, at unaccustomed and unappointed portions of its route, as it does to a passenger; and, though it may not kill or injure, with impunity, even a trespasser unlawfully upon its track, at any point or in any way, if by ordinary care it may avoid so doing; yet, in the language of this court, in the case of Dunn v. Seaboard and Roanoke Railroad Co., 78 Va., Judge Lacy delivering the opinion of the court, " the extent of a person's duties is to be determined by a consideration of the circumstances in which he is placed. The law imposes duties upon men according to the circumstances in which they...