Tucker's Adm'r v. Norfolk & W. R. Co

• Decision Date: 06 February 1896
• Citation: 92 Va. 549,24 S.E. 229
• Court: Virginia Supreme Court
• Parties: TUCKER'S ADM'R. v. NORFOLK & W. R. CO.

24 S.E. 229

92 Va. 549

TUCKER'S ADM'R.

v.NORFOLK & W. R. CO.

Supreme Court of Appeals of Virginia.

Feb. 6, 1896.

Railroad Companies—Injury to Trespasser on Right of Way—Liability.

A railroad company was not liable for the death of a trespasser lying on its right of way, near its track, and struck by its train, where the only witnesses of the accident testified that they saw the body at a sufficient distance for the train to be stopped, but thought it was an old tie, or section hand's coat, and the engineer also testified that he did not discover that it was a human being till so near it that he could not stop the train in time to avoid the accident.

Error to circuit court, Dinwiddie county.

Action by H. C. Tucker's administrator against the Norfolk & Western Railroad Company for death of his intestate. From a judgment for defendant, plaintiff brings error. Affirmed.

Staples & Munford and P. A. L. Smith, for plaintiff in error.

Geo. S. Bernard and W. H. Mann, for defendant in error.

HARRISON, J. The question involved in this case is the liability of the Norfolk & Western Railroad Company for the alleged negligent killing of the plaintiff's intestate, who was a trespasser upon the premises of the defendant company.

The court, in a very recent opinion, has prescribed what seems to us a wise and just rule for our guidance in cases like this. It is there said that the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was proximately caused by omissions of the defendant, after having such notice of the plaintiff's danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if he has sufficient notice, or belief to put a prudent man on the alert, and he does not take such precautions as a prudent man would take under similar notice or belief. Railroad Co. v. Joyner's Adm'r (decided at November term, 1895) 23 S. E. 773.

So far as pertinent to the question now under consideration, the facts proven can be briefly stated:

The accident occurred on the 30th of January, 1892, about 2:20 p. m. The defendant company was running its train, consisting of engine and tender, two passenger coaches, and one baggage car, west from the city of Petersburg, and near Wilson station. The engine was in first-class order, and the whole train thoroughly equipped with all the most improved appliances to secure its control, and the engineer was a trusted employs, with 26 years of experience in his business. On the engine was the engineer, who was sitting on the right-hand side of the cab, an assistant supervisor, who was seated on the left-hand side, and the fireman, who was standing just in rear of the engineer. There is some speculation whether deceased was drunk, stricken with epilepsy, or asleep. That, however, is immaterial. He was found stretched full length upon the ground, with his head between two cross-ties, and very near the right-hand rail, and his body and feet extending straight down the slope of the road-bed, and out towards the embankment. He was lying partly on his back, with his face somewhat turned in the direction from which the train was coming, and was struck on the head by the pilot of the engine, and died in about two hours after the injury was received. From the point where the deceased...