Southern Ry. Co v. Stockdon

• Decision Date: 14 March 1907
• Citation: 106 Va. 693,56 S.E. 713
• Parties: SOUTHERN RY. CO. v. STOCKDON.
• Court: Virginia Supreme Court

106 Va. 693

56 S.E. 713

SOUTHERN RY. CO.

v.STOCKDON.

Supreme Court of Appeals of Virginia.

March 14, 1907.

1. Railroads—Accidents at Crossings—Actions fob Injuries—Pleading.

In an action for injuries received at a railway crossing where a watchman was kept, allegations of the complaint which aver that plaintiff drove upon the track without looking, when he might have done so, do not show affirmatively that he was guilty of contributory negligence, and were not bad on demurrer.

[Ed. Note.—For cases in point, see Cent. Dig, vol. 41, Railroads, § 1112.]

2. Same—Ordinance Violated — Unconstitutionality.

Where a count of a complaint in an action for injuries received at a railway crossing states a good cause of action in other respects, a demurrer will not be sustained to it, on the ground that the speed ordinance alleged to have been violated by the defendant, was unconstitutional.

3. Same.

Where a count of a complaint in an action for injuries at a crossing states a good cause of action, a demurrer to it will not be sustained on the ground that it does not allege that the violation of a certain ordinance by the defendant, if valid, was the proximate cause of plaintiff's injury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1110.]

4. Same—Admissibility of Evidence.

In an action against a railway company for injuries received at a crossing in a town, where it was shown by defendant's time-table that it knew of the ordinance of the town regulating the speed within its limits, it was not error to admit the ordinance in evidence, even though by law it was only open for inspection to the voters of the town.'

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1133.]

5. Trial-Order of Proof—Discretion of

Court.

In an action against a railway for injuries at a crossing, where the violation of a speed ordinance was one of the grounds relied on to show the negligence of the company, it was not error to admit the ordinance in evidence, even if no foundation had been laid for its introduction, since the order of introducing evidence is in the discretion of the trial court

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 139, 141.]

6. Damages—Personal Injuries—Evidence —Earning Capacity.

In an action for persona] injuries, the court properly allowed the plaintiff to testify that several years ago he earned $40 a month as a wheelwright, and that he was earning more at the time of the accident, selling machinery upon commission, though he was unable to state the precise amount, since this was evidence tending to show his earning capacity at the time of the injury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, § 490.]

7. Railroads—Accident at Crossing—Action for Injuries—Questions for Jury.

In an action against a railway for injuries received at a crossing where a watchman was stationed, the question of whether the watchman gave proper warning of the approach of the train was for the jury, even though the preponderance of the evidence was to the effect that he did give warning.

[Ed. Note.—For cases in point, see Cent Dig. vol. 41. Railroads, §§ 1155-1164.]

8. Same—Instructions—Negligence of Defendant.

An instruction in an action against a railway for injuries received at a crossing charged the jury that the running of the train at a greater rate of speed than was allowed by the ordinance of the town in itself was not negligence which would render defendant liable. Held, that this instruction was not contradicted by one which told the jury that in determining whether the defendant was negligent, they could consider the fact, if it was a fact, that the defendant's train was running at a greater rate of speed than was allowed by the ordinance of the town, along with the other facts of the case.

9. Same—Contributory Negligence.

An instruction, in an action against a railway for injuries received at a crossing within the limits of a town, charged that plaintiff in approaching the crossing had the right to assume that the defendant would obey the speed ordinance of the town, and, if they believed that the train was running at a greater rate of speed than allowed by the ordinance, they might consider the fact along with the other circumstances of the case, in determining whether plaintiff was guilty of contributory negligence. Held, that this instruction was not in conflict with one which charged the jury that the running of the train at a greater rate of speed than was allowed by the ordinance of the town in itself was not negligence which would render defendant liable.

10. Same — Rate of Speed — Violation of Statutes or Ordinances.

A traveler approaching a railway crossing in a town has a right to assume that the railway company will obey the speed ordinance of the town, whether he sees or hears the train or not, unless his sight or hearing inform him that the company is running its train in violation of the ordinance.

[Ed. Note.—For cases in point, see Cent Dig. vol. 41, Railroads, §§ 1071-1074, 1187.]

11. Same — Contributory Negligence — Question for Jury.

In an action for injuries received at a railway crossing where a watchman was stationed, the preponderance of the evidence was that the watchman warned the plaintiff in time of the approaching train; yet there was evidence that the warning was given too late. The evidenceas to the care exercised by plaintiff in looking and listening as much as possible before going upon the track was also in dispute. Held, that the question of plaintiff's contributory negligence was for the jury.

[EM. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1166-1186.]

12. Same—Instructions.

In an action for injuries received at a railway crossing where a watchman was stationed, defendant asked an instruction that it was plaintiff's duty to approach the crossing at such a gait that he could stop if warned of an approaching train. The instruction, as amended and given, told the jury that the plaintiff should have approached the crossing at such a gait that he could stop if warned in time of an approaching train, and, if he did not do so, he could not recover. Held not error to refuse to give the instruction as ofEered, and in giving it as amended, since the instruction as asked ignored the fact that a watchman was kept at the crossing to give warning of approaching trains.

13. Trial—Refusal of Requests—Instructions Already Given.

In an action for injuries received at a railway crossing, refusal to instruct that plaintiff could not recover if his negligence contributed to the accident, even if the defendant was negligent, was not error, where this issue was covered by a given instruction that, if the plaintiff's negligence contributed to any extent to his injury, he could not recover.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

Appeal from Circuit Court, Orange County.

Action by H. W. Stockdon against the Southern Railway Company. Judgment for plaintiff, and defendant appealed. Affirmed.

The following is a copy of the complaint: "Henry W. Stockdon, plaintiff, complains of the Southern Railway Company, a corporation, defendant, of a plea of trespass on the case, for this, to wit, that heretofore, to wit, at the time of and before the commision of the grievances hereinafter set forth, the said defendant was and has hitherto continued to be a common carrier of passengers and freight, and in and about its said business was using and occupying, and has hitherto continued to use and occupy, a certain line of railroad track, a part of which then extended, and still extends, through the town of Orange, a municipal corporation, in the county of Orange, in the state of Virginia, and over and through the streets of the said town; that upon its said railroad track, a part of which was placed and laid through the town of Orange as aforesaid, the defendant in and about its said business, at that time used and ran, and has hitherto continued to use and run, certain trains of cars drawn by locomotive engines belonging to it. Plaintiff alleges that Main street— a public street of said town—in said town, crosses, and then did cross, said defendant's railroad track nearly at right angles, running nearly east and west, and that any person approaching, by way of said street, said crossing from the east side thereof, cannot, and could not then, see a train approaching on defendant's track from the north until he reaches said defendant's railroad track; the view of said person toward the north being obstructed.

"And said plaintiff avers that it then was, and still is, the duty of the defendant in the management, conduct, control, and running of its trains of cars drawn by its locomotive engines as aforesaid to use due and reasonable care and precaution to avoid running its trains of cars drawn by its locomotive engines, as aforesaid, against or upon, and to avoid colliding with, any person upon, or approaching, its said crossing.

"And the plaintiff avers that heretofore, to wit, on the 16th day of December, 1903, he, the said plaintiff, upon and by way of said Main street, approached the said crossing from the east side thereof, in his buggy drawn by one horse, and then and there exercising due care, being in said buggy drawn as aforesaid, entered upon said crossing, using due care in approaching and entering upon same.

"And the plaintiff avers that the defendant did not do and perform its duty in using due and reasonable care and precaution in the management, conduct, control, and running of its trains of cars, drawn by its locomotive engines as aforesaid, to avoid running its trains of cars, drawn by its locomotive engines as aforesaid, against and upon, and to avoid colliding with, plaintiff, as he, using due care, approached and entered upon said crossing, but, on the contrary, defendant did, at the said time and place, so negligently, carelessly, and wrongfully manage, conduct, control, and run one of its...