Southern Ry. Co v. Bailey

• Citation: 67 S.E. 365,110 Va. 833
• Parties: SOUTHERN RY. CO. v. BAILEY.
• Decision Date: 10 March 1910
• Court: Supreme Court of Virginia

67 S.E. 365

110 Va. 833

SOUTHERN RY. CO.

v.BAILEY.

Supreme Court of Appeals of Virginia.

March 10, 1910.

1. Railroads (§ 278^*)—Injuries to Person at Station—Contributory Negligence.

Where a drayman at a depot stands on a cement sidewalk so close to a railroad track that he is injured by being struck by a portion of an approaching engine, and his view was clear and unobstructed for about 1, 000 feet, and the track was straight for 707 feet, and the engine was moving five or six miles an hour, the drayman is negligent.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 891; Dec. Dig. § 278.*]

2. Railroads (§ 274*)—Injuries to Person at Depot—Care Required.

Those controlling a railroad train approaching a depot or any other point at which it is reasonably to be expected that persons would be in danger must use reasonable care to avoid doing them an injury.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 80S, 872; Dec. Dig. § 274.*]

3. Railroads (§ 377*)—Persons on Track-Last Clear Chance.

For an engineer to see a man on a railroad track is not necessarily to see that man in a position of danger, since, if in the possession of his faculties, such person may avoid the injury by using ordinary care to discover the approach of the engine.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1280; Dec. Dig. § 377.*]

4. Railroads (§ 390*)—Persons on Track-Last Clear Chance.

When it becomes apparent to those controlling a train that one on the track is unconscious of his danger, or is so situated as to be incapable of self-protection, it becomes the duty of those in control of the train to do all that they can consistent with their higher duty to others to save him from the consequences of his own act.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1325; Dec. Dig. § 390.*]

5. Railroads (§ 278*)—Injuries from Operation—Degree of Care.

The duty of guarding an individual against injury which the law imposes on a railroad company is no greater than that which the individual owes to care for his own safety.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 278.*]

0. Railroads (§ 383*)—Persons on Track-Duty to Look Out.

It is the duty of a person on the track of a railroad to keep constant lookout for approaching trains.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1305-1310; Dec. Dig. § 383.*]

7. Railroads (§ 278*)—Injuries to Person at Depot—Concurring Negligence.

A drayman at a depot stood on a cement sidewalk so near the track that he was struck by a portion of an engine coming into the depot at five or six miles an hour. He could have seen the engine 1, 000 feet away. The engineer of the engine also discovered the drayman, but made no effort to stop the train. Held, that the negligence of the drayman continued up to the moment of the injury, and, though the engineer was also negligent, the doctrine of last clear chance did not apply, since at any time the drayman, apparently in possession of all his faculties, could have stepped back and escaped injury, and hence it was a case of concurring negligence for which there could be no recovery.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 278.*]

Error to Circuit Court, Orange County.

Action by John S. Bailey against the Southern Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Williams & Tunstall and Shackelford & Shackelford, for plaintiff in error

. A. T. Browning and E. H. De Jarnett, Jr., for defendant in error.

KEITH, P. A jury found a verdict for the plaintiff upon the defendant's demurrer to the evidence, and the case is before us upon a writ of error.

Bailey, the plaintiff in the circuit court, was engaged as a drayman in carrying baggage and merchandise of various kinds from and to the station and trains of the Southern Railway, in the town of Orange. There are two tracks upon the Southern road at this point, a track upon which the trains move from the north to the south, known as the "south-bound track, " and a track upon whichtrains move from the south to the north, known as the "north-bound track." Upon the latter track, on the occasion in question, there stood a train of the Chesapeake & Ohio Railway. Just before receiving the injury, Bailey had left his horse and wagon at the rear of the depot on the east side of the fail-road tracks, had crossed the track to the west side, heard the Chesapeake & Ohio train coming north, turned and moved toward the south, stopped, and was looking at the Chesapeake & Ohio train when he was struck by an engine of the Southern Railway Company on the south-bound track, and received the injury for which he sues. He was standing upon a cement walk which was about on a level with the railroad track, and was struck by some part of the engine. He states that just before his attention was drawn to the Chesapeake & Ohio train he looked toward the north and saw nothing; that he does not suppose it was more than a minute after he looked before he sustained the injury and lost consciousness.

The uncontradicted evidence is that from the point at which Bailey was struck there is a clear and unobstructed view to the north for about 1, 000 feet, and that for 767 feet of this distance the track is straight. The ordinance of the town of Orange prescribes six miles an hour for the speed of trains within the corporate limits, and the evidence is that on this occasion it was moving at the rate of five or six miles an hour.

Bailey knew that trains were constantly passing upon the track near which he stood. In standing so near the track as to be struck by a passing engine, he was plainly guilty of negligence—of negligence which continued up to the moment of the accident. In addition to what has been stated, let it be conceded that the employés of the railway company operating its train saw the position which Bailey occupied, or by the exercise of reasonable care on their part could have seen him, the question for our determination is whether the jury were warranted in finding a verdict for the plaintiff upon these facts, or whether they present a case of mutual and concurring negligence upon which there can be no recovery.

We have held in numerous cases that those controlling a railroad train approaching a depot or any other point at which it was reasonably to be expected that persons would be in danger must use reasonable care to avoid doing them an injury. We have held in many cases that an engineer seeing a person upon the track in the apparent possession of all his faculties would have a right to suppose that such person would get out of the way of the approaching train; in other words, that to see a man upon the track is not necessarily to see that man in a position of danger, because, if in the possession of his faculties, and in the exercise of that care which is incumbent upon him he looks out for an approaching train, he can reach in an instant a place of safety, and the peril of one upon the track cannot therefore be known to those in control of the train until it becomes apparent that he is unconscious of his danger, or so situated as to be incapable of self-protection, when it becomes the duty of those in charge of the train to do all that they can, consistent with their higher duty to others, to save him from the consequences of his own act. We have held that the duty of guarding an individual against injury which the law imposes upon a railroad company is no higher or greater than that which the individual owes to care for his own safety; that all men know that to be upon a railroad track along which trains are frequently moving is to be in a position of danger, and imposes upon the person so exposing himself the obligation to keep a constant lookout for his own protection.

These principles apply with equal, perhaps greater, force to one who takes a position near a railroad track and in such close proximity as to be struck by any of the projecting parts of an engine or train—indeed, a person standing near a track would not so readily excite the apprehension of the engineer that his train might do him mischief as if the person stood or moved upon the track and within the rails, and he could also more easily remove himself from his position of peril.

Bailey was standing so near the track that some part of the engine of the south-bound train of the Southern Railway Company struck him and inflicted the injury. He was looking toward the Chesapeake & Ohio train, from which passengers were alighting. There was a good deal of bustle and stir around him. The engine in" omitting steam added to the noise and confusion; and he relied upon these and perhaps some other like causes to excuse his admitted want of attention, for he expressly says, in answer to the question, "Was there anything to prevent you walking far enough on the sidewalk to be in a place of safety? A. I don't know whether I was or not. I didn't have just the presence of mind. I wasn't thinking when I stopped there. I didn't know that there was anything coming back behind me. I could have walked further out, but I just happened to be walking along there and stopped. My attention drew to the other train, and I happened to stop at that place. I wanted to see if there was any baggage or something of that sort. Consequently I did not get there. I stopped for a minute, and that is all that I remember." There can be no doubt, therefore, that Bailey was guilty of negligence which continued up to the very moment when he was struck by the train.

In the case of Southern Ry. Co. v. Bruce, 97 Va. 92, 33 S. E. 548, this court said: "It Is the duty of a railroad company to use reasonable care to avoid injury to a licenseeon its track, but it is equally the duty of the licensee to take ordinary precautions for his own safety, even if there be negligence on the part of the company, and if, through his failure to do so, he is injured, he cannot recover. The question is not whether the plaintiff's...