Southern Ry. Co v. Wiley

• Decision Date: 09 March 1911
• Citation: 70 S.E. 510,112 Va. 183
• Parties: SOUTHERN RY. CO. v. WILEY.
• Court: Virginia Supreme Court

70 S.E. 510

112 Va. 183

SOUTHERN RY. CO.

v.WILEY.

Supreme Court of Appeals of Virginia.

March 9, 1911.

1. Railroads (§ 356^*)—Injuries to Trespassers—Use of Right of Way.

Where railroad tracks have long been used as a pathway with the knowledge and acquiescence of the company, it was bound to keep a reasonable lookout for persons upon the track.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1228-1234; Dec. Dig. § 356.*]

2. Railroads (§ 39S*)—Injuries—Sufficiency of Evidence—Knowledge of Danger.

In an action against a railroad company for injuries to a child on the track, evidence held to sustain a finding that the engineer saw the child in time to have avoided the accident.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1356-1363; Dec. Dig. § 398.*]

Appeal from Circuit Court, Halifax County.

Action by Ralph Wiley, by his next friend, Horace Wiley, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff moved the court to give the following instructions, marked "1, " "2, " and "3, " respectively, which were given as requested:

"(1) The court instructs the jury that if they believe from the evidence that on January 9, 1909, Ralph Wiley, the plaintiff, was about 2 1/2years of age, then he is presumed to have been incapable of contributory negligence. And the court further instructs the jury that, though they believe from the evidence that the father and mother of Ralph Wiley (or either of them) were guilty of negligence in not keeping said Ralph Wiley from going on the defendant's tracks, such negligence of the father or mother, or of both of them, cannot be imputed to said Ralph Wiley.

"(2) The court instructs the jury that if from the evidence in the case they believe that with the knowledge of the defendant its track at the point of the alleged accident has been for a number of years prior to and up to the time of said accident constantly used by such a number of the inhabitants of the village of Scottsburg and other people as a walkway and passway, and that the defendant might reasonably have expected that some of such inhabitants or people might be then and there upon its track at the said point, then the defendant owed the duty of taking reasonable care to discover and not to injure any such person whom it might reasonably expect to be on its track at that point; and, if the jury believe from the evi dence in the ease that the servant of the defendant in charge of its engine at the time of the injury complained of could by the exercise of reasonable care under the circumstances surrounding him at the time have discovered the danger of the infant plaintiff in time to have avoided injuring him, but that he failed to exercise such reasonable care under the circumstances surrounding him at the time, and as the result of such failure ran the engine against and upon the infant plaintiff, and thereby inflicting the injuries complained of, the defendant is liable, and the jury should find for the plaintiff."

"(3) The court instructs the jury that, should they believe from the evidence that the defendant's track at the point of the accident had not been used by a large number of people as a walkway and passway with the knowledge of the defendant, still if they do believe from the evidence that the engineer of the defendant company in charge of its engine at the time of the injury complained of discovered the infant plaintiff in this case on the track in front of the said engine in time to have stopped the engine and avoided the said injury, but that, after such discovery, negligently and carelessly failed to take any precaution to stop said engine, but ran the same against and over him, then the defendant is liable, and the jury must find for the plaintiff."

The defendant moved the court to give the following instructions, marked, respectively, "A, " "B, " "C, " "D, " and "F":

"(A) The court instructs the jury that the burden of proving negligence is upon the plaintiff, and that negligence must be proved by affirmative evidence, which must show more than a probability of a negligent act, that a verdict cannot be founded upon mere conjecture, and that there must be affirmative and preponderating proof that the injury to Ralph Wiley would not have occurred except for the negligence of the Southern Railway Company or its servants.

"(B) The court instructs the jury that, in order for the plaintiff to recover, he must show that the injury to Ralph Wiley was the result of some act of negligence on the part of the defendant company or its servants. The mere fact of an injury is not enough to warrant a recovery in this action without proof of the negligence on the part of the company, its agents, or servants, and the burden to establish such negligence is upon the plaintiff.

"(C) The court instructs the jury that, if they believe from the evidence that the points on the tracks of the Southern Railway Company at which Ralph Wiley was injured was not a street or highway crossing, then said company owed the said Ralph Wiley no duty to keep a lookout to avoid injuring him, but only owed him the duty ofusing due care to avoid injuring him after it or its servants discovered his danger, and, if the jury believed from the evidence that the agents and servants of the Southern Railway Company in charge of the train which caused his injury did not see said Ralph Wiley in time to have avoided the injury to him, they must find for the defendant in this action.

"(D) The court instructs the jury that if they believe from the evidence that the point at which the said Ralph Wiley was struck and injured by a train of the Southern Railway Company on its tracks and on its property that said Ralph Wiley had no business with the said railway at said place at that time, and that said point was not a street or highway crossing, and that he was not there with the consent or permission of said company, then the said company owed to said Ralph Wiley no duty to keep a lookout to avoid injuring him, but it only owed him the duty of using due care to avoid injuring him after it discovered his danger, and, if the jury believes from the evidence that the agents and servants of the Southern Railway Company in charge of the train which caused his injury did not see said Ralph Wiley in time to have avoided injuring him, then they must find for the defendant in this action."

"(F) The court instructs the jury that if they believe from the evidence that at the time Ralph Wiley was injured the fireman on the train which injured him was making up his fire and in the discharge of his usual duty, that the engineer in charge of the engine attached to said train was in proper position and looking ahead, and in discharge of his duty, that the time at which said Ralph Wiley was injured was at a time when the railway company, its servants and agents, had no reason to expect that said Ralph Wiley would be on its tracks, that owing to the darkness at that time and the position in which said Ralph Wiley was in, the engineer on said train did not see him, then the jury must find for the defendant in this action."

But the plaintiff, by counsel, objected in the instructions, marked "C" and "D, " and the court sustaining the objection of the plaintiff, by counsel, to the instructions, marked "C" and "D, " overruled the motion of the defendant, by counsel, to give said instructions and refused to give the same, but gave instructions, marked "A, " "B, " and "F."

After the court had expressed its intention to give to the jury instruction, marked "2, " prayed for by the plaintiff, the defendant, by counsel, moved the court to give to the jury instruction, marked "E, " in lieu and in place of said instruction, marked "2, " and to reject instruction, marked "2, " as offered by the plaintiff, which said instruction, marked "E, " is in the words following, to wit:

"The court instructs the jury that if they believe from the evidence that the point at which Ralph Wiley was injured was not in a public highway or street crossing that the defendant railway company only owed him the duty of using reasonable care to discover the said Ralph Wiley and not to injure him at that point; and, if the jury believe from the evidence that the servants of the defendant company in charge of its engine and cars could not in the exercise of reasonable care under the circumstances and conditions surrounding him at the time have known of the danger to the said Ralph Wiley in time to have avoided the accident, they must find for the defendant in this action."

But the plaintiff objected to the motion of the defendant, and insisted that its instruction marked "2" should be given; and the court overruling the said motion of the defendant, by counsel, gave instruction marked "2" as prayed for by the plaintiff to the jury, and also gave instruction marked "E" as offered by the defendant to the jury.

The instructions A, B, E, and F were asked for by the defendant, and instructions 1, 2, and 3 were asked for by the plaintiff. These are the instructions that were granted as follows: Instructions C and D, asked for by the defendant, were refused.

"(A) The court instructs the jury that the burden of proving negligence is upon the plaintiff, and that negligence must be proved by affirmative evidence, which must show more than probability of a negligent act, that a verdict cannot be found upon mere conjecture, and that there must be affirmative and preponderating proof that the injury to Ralph Wiley would not have occurred except for the negligence of the Southern Railway Company or its servants.

"(B) The court instructs the jury that, in order for the plaintiff to recover, he must show that the injury to Ralph Wiley was the result of some act of negligence on the part of the defendant company or its servants. The mere fact of an injury is not enough to warrant a recovery in this action without proof of negligence on the part of the company,...