Southern Ry. Co v. Baptist

• Decision Date: 13 March 1913
• Citation: 77 S.E. 477,114 Va. 723
• Parties: SOUTHERN RY. CO. v. BAPTIST.
• Court: Virginia Supreme Court

77 S.E. 477

114 Va. 723

SOUTHERN RY. CO.

v.BAPTIST.

Supreme Court of Appeals of Virginia.

March 13, 1913.

1. Railroads (§ 320^*)—Highway Crossings

—Duty to Travelers.

The rule that, when railroad employes in charge of a train discover a person near the track or approaching a crossing, they may assume that he will not go upon the track immediately ahead of the approaching train does not apply where there is anything to suggest that he will not remain in a place of safety until the train has passed, as where plaintiff was struck by a train while holding an unmanageable horse by the bridle in an attempt to keep him from going upon the track.

[Ed. Note.—For other cases, see Railroads. Cent. Dig. §§ 1014-1016, 1019; Dec. Dig. S 320.*]

2. Railroads (§ 350^2-*)— Injury to Person at Crossing—Jury Question—Contributory Negligence.

In an action against a railroad company for injury to plaintiff, who was struck by a train while attempting to prevent an unmanageable horse, driven by another, from going on the track, whether plaintiff was guilty of contributory negligence in imperiling himself to save another, even if such act could be the basis of contributory negligence, held, under the evidence, a jury question.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]

3. Evidence (§ 539 1/2*)—Expert Opinions-Locomotive Engineering.

In an action against a railroad company for injury to a person struck at a crossing, a witness sufficiently qualified himself to testify to the distance within which the train could have been stopped by showing that he was a locomotive engineer with nine years' experience and familiar with the use of air brakes, the scene of the accident, the curvature of the grade, and other surrounding details; the engineer in charge of the train having testified as to the make-up of the train, its condition, its air brake equipment, and its speed.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2350-2352; Dec. Dig. § 539 1/2.*]

4. Appeal and Error (§ 1050*)—Harmless Error—Admission of Evidence.

In an action against a railroad company for injuries to a person struck at a crossing, any error in permitting a witness to give an opinion as to the distance within which the train might have been stopped was harmless to defendant, where the engineer in charge of the train testified that it could have been stopped in a distance less than that at which plaintiff's peril was discovered.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]

5. Appeal and Error (§ 1033*)—Right to Complain—Favorable Instructions.

In an action against a railroad company for injury to plaintiff, who was struck at a crossing while attempting to prevent an unmanageable horse, driven by another, from going on the track, any error in an instruction that, if plaintiff acted with reasonable prudence, and was thereby placed in a dangerous position known to the enginemen in time, by the use of ordinary care on their part, to have avoided injuring him, etc., and they failed to use reasonable care to use the means at hand, consistent with the safety of those upon the engine and train, and defendant's property, to avoid injuring plaintiff, and if such negligence caused plaintiff's injury, he could recover, was favorable to defendant, since defendant's employes w^;ere bound to use such care to avoid injuring plaintiff after discovering his peril, though he did not act with reasonable prudence in going to the assistance of the driver of the horse.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]

6. Trial (§ 253*)— Instructions—Refusal-Instructions Ignoring Evidence.

In an action against a railroad company for injury to plaintiff, who was struck at a crossing while attempting to prevent an unmanageable horse, driven by another, from going on the track, instructions which ignored evidence that plaintiff was in a peril from which he could not extricate himself by loosening his hold, through danger of being trampled upon by the horse, and ignoring evidence that the train could have been stopped after dis covery of plaintiff's peril, were properly refused to defendant.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]

Error to Circuit Court, Halifax County.

Action by S. G. Baptist against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

William Leigh, of Danville, for plaintiff in error.

Booker & McKinney, of Houston, and Lee & Kemp, of Lynchburg, for defendant in error.

HARRISON, J. This action was brought by S. G. Baptist to recover of the Southern Railway Company damages for personal injuries suffered by him in consequence of the alleged negligence of the defendant company. To a judgment in favor of the plaintiff for $10,000, this writ of error was awarded upon the petition of the defendant.

The case is before us as upon a demurrer to the evidence, and, considered with due regard to the rules applicable under such circumstances, the established facts are: That on a clear day one W. B. Chandler, father-in-law of the plaintiff, was driving a gentle horse, about four years of age, toward a grade crossing at the defendant's Scottsburg station; that when within about 40 feet of the crossing, upon warning from bystanders that a train was approaching, he stopped, at which time the train was 100 yards or more distant, and just coming in sight around certain obstructions. As soon as the engine came in sight, the horse became unmanageable, and when the driver found that he could not control him and prevent his moving in the direction of the track he called for help; whereupon the plaintiff, a large man weighing over 200 pounds, went forward and seized the bridle. A considerable struggle ensued, the horse rearing and endeavoring to go forward, whilst the driver tried to restrain him, and the plaintiff, swinging to the horse's head, was doing his utmost to prevent the horse from going forward and coming in collision with the engine. The horse finally reached the track and crossed by leaping over the pilot of the engine, without in-injury. In the struggle the plaintiff was thrown against the side of the engine, sustaining thereby dreadful and permanent injuries. The train was running at the rate of 8 to 10 miles an hour, and could have been stopped within 50 feet, according to the plaintiff's proof. The engineer in charge of the train says that after he was notified by the fireman of the plaintiff's danger he could have stopped in 50 or 75, or maybe 100, feet. When the struggle with the horse began, the train was 125 to 130 steps from the crossing. The fireman says that he was then looking out, and the plaintiff's testimony shows that he was then looking upon the struggle. When the plaintiff caught hold of the frightenedand rearing horse, it was, notwithstanding the driver's efforts to hold it, working its way toward the crossing; and the violence of the struggle between the horse and the plaintiff was such that the latter could not have released his hold without danger of being trampled upon by the rearing horse. So that the plaintiff was in a perilous situation from which he could not extricate himself. The least estimate put upon the distance of the train from the crossing at the time the plaintiff seized the bridle was 144 feet. The fireman says that he saw the horse just as the engine rounded the obstructions (125 steps from the crossing); and that before the plaintiff seized the bridle he saw the horse rearing towards the crossing. It is established beyond controversy that the fireman was looking upon the scene when the plaintiff took hold of the bridle, at which time the engine was at least 144 feet from the crossing. At that time the peril of the plaintiff was apparent to all of the bystanders, and must have been equally manifest to the fireman, who was also a spectator. N. & W. Ry. Co. v. Crowe, 110 Va. 798, 67 S. E. 518. As already seen, the train could have been stopped within 50 feet, at the rate it was moving, so that if the fireman had promptly notified the engineer of the danger when he saw the plaintiff's peril, not less than 144 feet from the crossing, the accident could have been easily averted by stopping the train before it reached the crossing.

It it well settled that, where railroad employes discover persons near a railroad or approaching a crossing, such employes have the right to presume that the traveler will stop and not go upon the...