Southern Ry. Co v. Adm&r

• Decision Date: 06 April 1899
• Citation: 33 S.E. 548,97 Va. 92
• Court: Virginia Supreme Court
• Parties: SOUTHERN RY. CO. v. BRUCE'S ADM'R.

33 S.E. 548

97 Va. 92

SOUTHERN RY. CO.

v.BRUCE'S ADM'R.

Supreme Court of Appeals of Virginia.

April 6, 1899.

RAILROADS — INJURY TO PEDESTRIANS—CONTRIBUTORY NEGLIGENCE—BURDEN OP PROOF.

1. In an action against a railroad company for injuries, the burden of proving contributory negligence is on defendant, unless plaintiff's case discloses negligence, or it can be fairly inferred from all the evidence.

2. A pedestrian was killed by a train while walking along the track at a point where the public was licensed to pass. He knew of obstructions to view in the direction from which the train approached, but neither looked nor listened, and paid no attention to exclamations of others which ho would have heard had he not been engrossed in other matters. Held, that deceased was guilty of such contributory negligence as to preclude a recovery against the railroad company for his death.

Error to corporation court of Danville.

Action by the administrator of L. R. Bruce against the Southern Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Blackford, Horsley & Blackford, for plaintiff in error.

Thos. Hamlin and Eugene Withers, for defendant in error.

CARDWELL, J. This is a suit brought in the corporation court of the city of Danville by P. H. Boisseau, sergeant of said city, and as such administrator of L. R. Bruce, to recover damages for the death of Bruce, caused, as is alleged, by the negligence of the Southern Railway Company; and the verdict and judgment are for the plaintiff for the sum of $5,350, to which judgment the defendant company was awarded a writ of error by this court.

The Southern Railway enters North Danville upon the north side of Dan river, making with the river, as it approaches, an acute angle with its point to the south and its opening to the north. The depot in North Danville is at the point where the railroad is nearest to the river, and from there it runs down the bank of the river some distance, and then crosses it to the south side, where the city of Danville is situated. About a half mile north of the depot in North Danville, a public road from Danville to Henry Court House crosses the railroad, and at this crossing this road is called "Henry Street." Near by is situated the station signal post, and the steepest grade is from that signal post something over a quarter of a mile southward to a trestle which crosses a deep ravine. This trestle is situated just at a point where the line of the railroad from the north turns on a sharp curve to the left, so as to become nearly parallel to the river, and near the south end of this curve is situated the main building of the Riverside Cotton Mills. The space between the railroad and the river, beginning at the trestle, and running almost all the way down to the depot, belongs to the Riverside Cotton Mills Company, and the center of Its principal building is a little south of the south end of the trestle. The streets of North Danville do not cross the railroad at any point opposite to the property of the Riverside Cotton Mills Company, but stop at the east line of the railroad company's right of way. There are paths down the incline of these streets, used largely by employes at the cotton mills and persons working in the mills and factories on the south side of the river in the city of Danville; and in Pickett street—the nearest of these streets to the trestle—there are wooden steps coming down the incline of the street 20 or 25 feet, connecting with a platform over the space between the foot of the embankment and the end of the railroad ties, just opposite to the entrance of the main building of the cotton mills. Upon the western side of the railroad is a fence nearly the entire length of the Riverside Cotton Mills property, 8 feet high, put up by the latter company. Upon the eastern side there is no fence, but an embankment, the highest portion of it being on the inside of the sharp curve in the railroad, near the trestle, where it is from 15 to 20 feet high; and upon both sides of the railroad track, from the trestle to a point some distance past the place where the accident occurred which is the subject of this suit, there is a space sufficiently wide for pedestrians to walk. The one on the east side of the railroad track, and between it and the embankment, is narrow, however, and serves principally to catch and carry off surface water from the high ground adjacent; while that on the west side of the railroad track, between it and the fence in front of the Riverside Cotton Mills property, is much wider, and affords ample space and a convenient walkway for travelers. This space is at no point less than 4 feet wide, and at others as much as 12 or more feet, there being nothing thereon to obstruct it as a walkway to some distance below where the accident occurred, unless it be the iron bars connecting the rails of the side track with the switching post set within the fence at a point a little below the place of the accident, which are not more than 3 or 4 inches from the ground.

The deceased, a young man about 19 years of age, in good health, and his eyesight and hearing not at all impaired, had been in North Danville two days prior to his death, boarding at the house of one Cobb, in full view of the railroad and its trains passing in and out of North Danville at all hours of the day and night; his mission to North Danville being to get work, as Cobb, with whom he was boarding, testified; and on the morning of July 27, 1897, he left Cobb's house at an early hour, and about half past 6 o'clock he entered upon the railroad at or near the north end of the trestle of which we have been speaking, and, crossing the deep ravine there, either over or under the trestle, he continued southward on the railroad track towards the depot. He had passed the main entrance to the largest building of the cotton mills, and was opposite the clearance post just above where a side track to the storage warehouse of the cotton mills makes off from the main track of the railroad, when he was struck and killed by the Washington & Southern Limited Express train No. 37, of the defendant company, going south, which was running into North Danville an hour be bind its schedule time.

At the trial of this cause the court gave seven instructions asked for by the plaintiff; to two of which—Nos. 1 and 7—the defendant company excepted. They are as follows;

"(1) The court instructs the jury that a railroad company running and operating its trains through a city, where its track and right of way are constantly used as a footway by large numbers of men, women, and children passing over it daily, and at all times, must use greater care and diligence to prevent injuries to persons and property than is required of them in running and operating their trains in less frequented and populouslocalities; and so in certain localities in the town greater precaution may be necessary than in others. For example, if the train is being carried around a curve, objects or persons on the other side of which are hidden from view, it is required of them to resort to special precautions, depending upon the particular locality, and the circumstances to avoid accidents; and any neglect of such precautions as are proper under the peculiar surrounding circumstances of the locality constitutes negligence for which the railroad company is liable in damages, unless the plaintiff's intestate, by the exercise of ordinary care on his part, could have prevented the accident; and the burden of proof is on the railroad company to prove such absence of ordinary care on the part of the plaintiff's intestate."

"(7) The court further instructs the jury that if they believe from the evidence that the roadbed and track of the defendant company at and near the point where the plaintiff's intestate is alleged to have been killed was situated in the city of Danville, Va., and that, owing to sharp curves in the said tracks and embankments alongside of it, and other obstructions on the side of and near said track at and near that point, that the engineer was prevented from seeing objects upon the track in front of the train at as great a distance as he otherwise could have seen such objects, and that he was prevented from seeing them at a sufficient distance to stop his train before running upon them when running at the rate of speed usually maintained at or near said point, and that large numbers of men, women, and children daily passed along and upon defendant's track at and near that point, and especially from 6 to 7 o'clock in the morning, and that the defendant company had notice of such use of its track, and acquiesced therein, —then it would be the duty of the defendant company to exercise such reasonable care and precaution before passing said curve, embankment, or other obstruction at or near such point as to protect from injury such men, women, and children whom they might reasonably expect to be on their track at that point. And if the jury further believe that the defendant company failed to exercise such care and precaution in order to protect such persons, and that, in consequence of such failure, the plaintiff's intestate was killed, then they must find for the plaintiff, unless they further believe that the plaintiff's intestate was guilty of such negligence on his part as was the proximate cause of his death; and the burden of proving such contributory negligence on the part of the plaintiff's intestate is upon the defendant company."

It is contended on behalf of defendant in error that these instructions embody the principles enunciated by this court in the cases of Blankenship v. Railway Co., 94 Va. 449, 27 S. E. 20, and Kimball v. Friend's Adm'r, 95 Va. 125, 27 S. E. 901; while counsel for plaintiff in error conceded that this is true, but most earnestly insist that the instructions are not applicable to the facts and circumstances of this case, and therefore were...