Shenandoah Val. R. Co v. Moose

• Decision Date: 10 November 1887
• Citation: 3 S.E. 796,83 Va. 827
• Court: Virginia Supreme Court
• Parties: Shenandoah Val. R. Co. v. Moose.

3 S.E. 796

83 Va. 827

Shenandoah Val. R. Co.

v.Moose.

Supreme Court of Appeals of Virginia.

November 10, 1887.

1. Carriers—Duty Towards Infirm Passengers—Negligence.

A passenger on a railroad train, who had been suffering from rheumatism of the hip, was thrown from his seat in a car by a collision of the train, and his hip broken. In a suit for damages, counsel for the railroad asked the court to instruct the jury: "Although the jury believe from the evidence that the injury complained of in the declaration was inflicted by the defendant upon the plaintiff in the manner therein set out, yet the plaintiff is not entitled to recover if they shall further believe from the evidence that he was in a feeble and infirm state of health, and such as would have prevented a prudent man from running the risk of travel, and that but for his diseased and helpless condition the plaintiff would not have suffered the injury so inflicted by the defendant." Meld, that the instruction was properly refused.

2. Same.

Counsel for the railroad asked the court to instruct the jury "that a railroad company is bound, as to passengers, to make such arrangements for their transportation as are suitable to preserve from harm reasonable and prudent men in possession of their ordinary senses and capacities; and there is no obligation to provide arrangements for transportation suitable to the protection of persons falling below that standard, physically or mentally." Held, that such instruction was properly refused.

3. Damages—Personal Injuries—Mitigation—Contributory Negligence.

Counsel for the railroad asked the courtto instruct the jury' " If the jury believe from the evidence that the seat of the injury caused by the defendant to the plaintiff was the right hip, and that before and at the time of the said injury the said hip was in a diseased condition, and liable to injuries that in a sounder condition of health would not have been inflicted by the collision proven in the cause, they are at liberty to consider these facts in their estimate of compensation for damages inflicted by the defendant upon the plaintiff in the manner set out in the pleadings." Held, that such instruction was properly refused.

4. Appeal—Objections not Raised Below—Variance.

The proper mode to take advantage of a variance between the allegations and proof is to move to reject such evidence when offered, or to move the trial court to instruct the jury to disregard it, and, such not having been done, it is too late to raise the objection in court of errors.

Error to circuit court, Rockbridge county.

Wm. H. Travers and Edmund Pendleton, for plaintiff in error. J. R. Tucker and W. A. Anderson, for defendant in error.

Lewis, P. J. This was an action in the circuit court of Rockbridge county, in which the defendant in error here was plaintiff. The action was brought to recover damages for injuries received by the plaintiff while traveling as a passenger on the road of the defendant company. At the time the plaintiff was injured he was seated in a Pullman car attached to the train upon which he had taken passage. The injuries were caused by the collision of the trainwith a coal car of the defendant at Rippon station, in Jefferson county, West Virginia; the plaintiff being thrown from his seat in the car with such violence as to break the neck of his right thigh bone, and to produce other and permanent injuries. On the day mentioned in the declaration he took the train at hock Laird station, in Rockbridge county, to go to New York, and while on his journey received the injuries complained of. The action was assumpsit, founded upon an alleged contract to safely carry the plaintiff from the station last mentioned to the northern terminus of the defendant's road, to-wit, Hagerstown, in the state of Maryland, and the breach alleged was the collision and consequent injuries to the plaintiff above mentioned.

At the trial, the court, on the plaintiff's motion, gave to the jury the following instructions: "(1) When injury or damage happens to a passenger (on a rail-toad) by a collision, or by any other accident occurring on the road, the prima facie presumption is that it occurred by the negligence of the railroad company, and the burden of proof is on the company to establish that there has been no negligence whatsoever, and that the damage has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent. (2) The law, in tenderness to hitman life and limb, holds railroad companies liable for the slightest negligence, and compels them to repel by satisfactory proofs every imputation of such negligence. When carriers undertake to convey passengers by the powerful, but dangerous, agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. Any negligence or default in such case will make such carriers liable. (3) The Shenandoah Valley Railroad Company, as a common carrier of passengers, was bound to exercise the utmost degree of diligence and care in safely transporting the plaintiff upon his journey."

To the giving of these instructions the defendant excepted. It also offered seven instructions of its own, two of which were given; the rest were refused. There was a verdict for the plaintiff for $8,000 damages, and, judgment having been rendered on the verdict, the defendant obtained a writ of error from one of the judges of this court.

The principal questions raised in this case relate to the refusal of the circuit court to give to the jury certain instructions offered by the defendant. No objection is made to the instructions which where given at the instance of the plaintiff; nor are they open to objection, since they literally propound the law as it has been declared by this court, and in numerous decisions of courts of last resort in England and in this country. Railroad Co. v Wightman's Adm'r, 29 Grat. 431; Same v. Noell's Adm'r, 32 Grat. 394; Railroad Co. v. Derby, 14 How. 468; Railroad Co. v. Horst, 93 U. S. 291, 2 Woods, Ry. Law, § 301, p. 1074, and cases cited.

The first instruction offered by the defendant and refused is as follows: "Although the jury believe, from the evidence, that the injury complained of in the declaration was inflicted by the defendant upon the plaintiff in the manner therein set out, yet the plaintiff is not entitled to recover if they shall furl her believe, from the evidence, that he was in a feeble and infirm state of health, and such as would have prevented a prudent man from running the risk of travel, and that but for his diseased and helpless condition the plaintiff would not have suffered the injury so inflicted by the defendant."

This instruction was rightly refused. In the first place, it is not relevant to the evidence in the case. It presents an unwarranted hypothesis to the consideration of the jury; and, if a verdict for the defendant had been returned upon such hypothesis, it would have been the duty-of the court, upon the motion of the plaintiff, to set it aside. There is nothing even tending to show that the plaintiff was in such condition as to render railroad travel on his part imprudent, much less that his condition was "helpless." The most the evidence shows on that point is that the plaintiff had been suffering for several months with chronic rheumatism of the hip, and of the muscles andtissues therewith connected. But it also shows that at the time of the accident he was nearly well; that for some time prior thereto he had been going about; and that the day before he had been engaged in setting out and pruning fruit trees in his orchard; that he used one crutch in walking, generally as a staff, and was rapidly getting well, when the accident occurred. So that the instruction was calculated to mislead the jury, and it would have been error to have given it. The office of an instruction is to aid the jury in arriving at a correct conclusion upon the evidence in the case, not to mislead or perplex them by laying down merely abstract propositions, or by submitting questions in relation to which there is no evidence. Wiley v. Givens, 6 Grat. 277; Pas-ley v. English, 10 Grat. 236; Boswell's Case, 20 Grat. 860; Lunatic Asylum v. Flanagan, 80 Va. 110; Priest v. Whitacre, 78 Va. 151; Bank v. Eldred, 9 Wall. 544; Railroad Co. v. Gladmon, 15 Wall. 401.

The instruction is also erroneous in another point of view. It not only assumes that the plaintiff was helplessly infirm, but that such assumed infirmity was equivalent to contributory negligence on his part which bars a recovery. It thus ignores an important qualification of the general rule as to the legal effect of contributory negligence, which is this: that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him. This qualification was clearly stated in the case of Tuff v. Warman, 5 C. B. (N. S.) 573, so often referred to, and is the established doctrine in England, and certainly in this state. Indeed, it is nothing more than the application of the maxim sic utere tuo ut alienum non laedas. Broom, Leg. Max. 385; Radley v. Railway Co., L. B. 1 App. 754;...