Seabd. & R. R. Co v. Joyner's Adm'r

• Decision Date: 12 December 1895
• Citation: 92 Va. 354,23 S.E. 773
• Court: Virginia Supreme Court
• Parties: SEABOARD & R. R. CO. v. JOYNER'S ADM'R.

23 S.E. 773

92 Va. 354

SEABOARD & R. R. CO.

v.JOYNER'S ADM'R.

Supreme Court of Appeals of Virginia.

Dec. 12, 1895.

Accident on Railroad-Negligence—Pleading —Trespasser—Instructions.

1. A complaint alleging that defendant's train, starting from a station, negligently ran over deceased, sitting on the track 300 yards from the station, he being in plain view of those in charge of the engine from the time they left the station, is not demurrable.

2. Recovery may be had for the death of a trespasser, killed while sitting on a railroad track, though he was guilty of contributory negligence, if those in charge of the train could, after discovering his peril, by proper care and due diligence, have avoided the accident.

3. It is not error to charge, in an action for death of a trespasser on a railroad track, that though he was guilty of contributory negligence, recovery could be had for his death, if, after his peril was discovered by those in charge of the train, the injury "could have been prevented, "as, after discovery of a trespasser's peril, those in charge of a train are to use the same care to avoid injuring him as in case of one rightfully on the track.

4. An instruction that, if deceased was a trespasser on defendant's track, and negligently placed himself in position to be struck by its train, recovery could not be had for his death, unless the accident was caused by defendant's willful negligence, is properly refused) no reference being made in it to the evidence that, before the accident, the engineer became aware of the dangerous position of deceased.

5. Where an engineer, violating a rule of the company that "any object waved violently by any person on the track signifies danger, and is a signal to stop, " pays no heed to a person running along a track for 80 yards, waving his hat, and making every possible effort to stop the train, and does not apply brakes till, when within 60 yards of him, and too late to avoid an accident, he observes a person lying on the track, he will be held negligent, and the company liable for the death of the trespasser on the. track, killed by the train.

Error to circuit court, Southampton county.

Action by Joyner's administrator against the Seaboard & Roanoke Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Watts & Hatton and R. R. Prentis, for plaintiff in error.

W. S. Holland, J. B. Prince, and Jackson Guy, for defendant in error.

KEITH, P. This is an action of trespass on the case, brought in the circuit court of the county of Southampton by Joyner's administrator against the Seaboard & Roanoke Railroad Company to recover damages for the death of the plaintiff's intestate, caused, as alleged, by the negligence of the defendant company. The declaration contains five counts. The defendant appeared, and demurred to the whole declaration, and to each count thereof, and the court below overruled the demurrer, and, a judgment having been rendered against the defendant, the case was brought here upon a writ of error.

Only the demurrer to the third count is here insisted upon. From this count it appears that Sinclair Joyner, starting at Branchville station, walked down the track of the defendant company about 300 yards, stopped, and sat down on the track; that the local freight train of the defendant was then at Branchville station, plainly within sight of Joyner; and that the defendant company negligently ran its engine upon Joyner's body, being then and there constantly, from the time the engine moved from Branchville station up to the time of the accident, clearly and plainly within seeing distance of the employes of the company who were in charge of the engine, thereby giving Joyner fatal and mortal wounds, of which he died, his death being caused by the wrongful act of the defendant company. In Railroad Co. v. Sherman's Adm'x, reported in 30 Grat 602, the first count in the declaration charged that the defendant company, operating a certain railroad for the purpose of running steam locomotive engines and coaches on and over the same, did carelessly and negligently, and with great force and violence, run and drive its engine upon and against Nathan G. Sherman, there then being, and thereby, then and there, with said engine and coaches, did so greatly wound said Nathan G. Sherman that by reason thereof he then and there died, and his death was caused by the said wrongful act, neglect, and default of said railroad company; wherefore damages were claimed. Upon a demurrer the count was held good, Judge Moncure delivering the opinion, in which the whole court concurred. It is obvious that the count under consideration in this case, the substance of which has been given, states a stronger case against the plaintiff in error than the count in Sherman's Case, in this: that it avers that, from the time the train left Branchville station, a distance of 300 yards from the point of the accident, Sinclair Joyner, who was killed, was in plain view of the employes and agents of the company who were in charge of the engine which Inflicted the Injury. Upon this point the case of Railroad Co. v. Sherman's Adm'x was referred to with approbation by this court in Railroad Co. v. Harman's Adm'r, 83 Va. 553, 8 S. E. 251, the court overruling the demurrer to the declaration in that case, which contained but one count, and that count a copy, names and dates excepted, of the first count in the case of Railroad Co. v. Sherman's Adm'x. The authority of that case, therefore, is too well established to be successfully attacked in this court The demurrer was properly overruled.

The next question to be considered arises upon the exception to the action of the trial court in giving instructions Nos. 5 and 6. which are in the following words: "No. 5. The court instructs the jury that if they believe from the evidence that Sinclair Joyner went upon the track of the defendant company without its consent, and placed himself thereon in such a position as to be struck by the train, then the said Joyner was a trespasser, and guilty of such contributory negligence as will prevent a recovery by his administrator in this action, unless the jury further believe that, after his peril was discovered, the Injury could have been prevented. No. 6. The court instructs the jury that, though the plaintiff may have been guilty of contributory negligence, and although that negligence may in fact have contributed to the accident, yet if the jury believe from the evidence that the defendant could, in the result, —that is, after it discovered his peril, —by the exercise of proper care and due diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse it." We do not think that the correctness of instruction No. 6, as given by the court, can be successfully controverted. It enunciates a proposition which has been repeatedly approved by this court, that though the plaintiff may have beenguilty of contributory negligence, and although that negligence may in fact have contributed to the accident, yet if the jury believe that the defendant could, in the result, —that is, after it discovered his peril, —by the exercise of proper care and due diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse it; and this, I take it, without regard to the fact that the contributory negligence of the plaintiff may have had its origin in a trespass upon the property of the defendant company. While the extent of the duty of the defendant company to look out for trespassers, and the degree of care to be exercised in ascertaining the peril of a trespasser, are the subjects of much controversy, it is well established that, when the danger to the trespasser is discovered, it is the duty of the defendant company to avoid doing him an injury, if that can be done consistently with the higher duty which it owes to the passengers and property directly committed to its care; and this 1 take to be the meaning of "proper care and due diligence, " as used in the sixth instruction. What is proper care and due diligence is to be determined by reference to surrounding circumstances. What would be reasonable and prudent conduct, in a given situation, would, under changed conditions, be sufficient to warrant the imputation of negligence. It is unnecessary, however, to expatiate upon the subject, or to cite authorities in support of it, other than the case of Railroad Co. v. Anderson's Adm'r, 31 Grat. 812, where the proposition embraced in this instruction is approved in terms almost identical with those used in this...