Tyler v. Sites' Adm'r

• Decision Date: 03 December 1891
• Citation: 88 Va. 470,13 S.E. 978
• Parties: Tyler v. Sites' Adm'r.
• Court: Virginia Supreme Court

13 S.E. 978

88 Va. 470

Tyler

v.Sites' Adm'r.

Supreme Court of Appeals of Virginia.

Dec. 3, 1891.

Railroad Companies — Accidents on Track— Contributory Negligence—Instructions. 1. Plaintiff's intestate was killed while walking on a railroad track. The deceased, who was a deaf-mute, had once before received an injury in a similar manner, and had been repeatedly warned about walking upon the railroad. Only a few minutes before he was killed, he had been so warned. The accident occurred in an open plain, where the view was unobstructed for nearly a mile. Deceased, although a deaf-mute, was possessed of all his other faculties, including that of sight, and was a strong, active man, about 33 years of age. He was walking directly towards the train, on the ends of the ties, on the side opposite the engineer. The latter saw him until he came within 25 or 30 yards, when the projecting front of the locomotive intervened. He supposed, however, tho deceased would step off. Held, that the deceased's own negligence was the proximate cause of the injury, and plaintiff was not entitled to recover.

2. The defendant requested the court to charge that the company was bound to keep a reasonable lookout for trespassers on its track, and to exercise such care as the circumstances might require to prevent injury to them; if a trespasser was an adult, and apparently possessed of his faculties, the company had a right to presume that he would remove himself from his dangerous position, and if he failed to do so the fault was his own, "and there is, in the absence of willful negligence on its part, no remedy against it for the results of an injury brought upon him by his own recklessness. " If the company or its employes used reasonable care after discovering the perilous position of the deceased to avoid injuring him, plaintiff was not entitled to recover. Tho court modified the said instructions by striking out the words quoted. Held erroneous, as the said words were necessary to the correct statement of the rule. Railroad Co. v. Harman's Adm'r, 8 S. E. Rep. 251, 83 Va. 553, followed.

3. The defendant requested the court to charge—First, that certain acts and conduct of the deceased, if proven, constituted gross negligence on his part; and_; second, that if guilty of such negligence the plaintiff could not recover unless the injury was willfully committed. The court modified the said instruction by adding: Unless the injury could have been prevented by the exercise of reasonable care on the part of the trainmen after they discovered the peril of the deceased. Held, that the modification was unwarranted, as there was no evidence to show that the peril of the deceased was discovered, or that the injury could have been prevented by the exercise of reasonable care.

This was an action by V. H. Tain, administrator of Thomas H. Sites, against S. F. Tyler, receiver of the Shenandoah Valley Railroad Company, to recover for the killing of plaintiff's intestate. There was judgment for plaintiff, and defendant brings error. Reversed.

W. H. Travers and Sipe for appellant.

J. E. Roller and C. D. Harris, for appellee.

Richardson, J. This is a writ of error to a judgment of the circuitcourt of Rockingham county, rendered on the 21st day of October, 1890, in a certain action of trespass on the case, wherein V. H. Tain, sheriff of Rockingham county, and as such, administrator of the estate of Thomns H. Sites, deceased, was plaintiff, and S. F. Tyler, receiver of the Shenandoah Valley Railroad Company, was defendant. The trial court certifies, not the facts proved, but the evidence adduced at the trial. From an inspection of the evidence thus certified, it is impossible to perceive why the court below did not abbreviate tlie matter by certifying the facts proved, as there certainly is no conflict of evidence as to any material question arisine in th«case. But, be this as it may, the material facts as established by the plaintiff's testimony alone are these:

Thomas H. Sites, the plaintiff's intestate, who was a deaf-mute, was on the 24th day of May, 1887, while walking on or very near the railroad track of the Shenandoah Valley Railroad Company, about two miles north of Elkton. a station on'said road, struck and killed by an engine attached to and drawing a train of freight-cars on said road, which engine and train were then in the control and management of the employes, agents, and servants of said company. From Elkton the Shenandoah Valley Railroad extends northward for nearly three miles through a "level, cleared plain, comprising the rich cultivated river bottoms lying along the east side of the Shenandoah river in that locality. In the midst of this plain, and about two miles from Elkton, the accident occurred, at a point where the track is elevated upon a slight fill, estimated at three feet, with nothing to obstruct the view of the track for a distance of nearly a mile to the north, and an equal distance to the south." About GOO yards north of the point where the accident occurred, a public road crosses the railway, and a short distance beyond, on the left or west side of the railroad, and some 75 yards distant therefrom, is the residence of Mr. Thomas Naylor, at or near whose residence the plaintiff's intestate started to go to the house of Decatur Bear, and seems to have walked along near, but not on, the railroad track, for some distance, and then on the track, or on the ends of the ties on the side of the track, and was so walking when he met the train, by the engine of which he was struck and killed. The accident occurred in the midst of the open plain above described, where there was no obstruction to the view of the track for the distance of near one mile north or south, and at the time of the accident the train was running north, and the plaintiff's intestate walking south, meeting it.

Thomas Naylor, above referred to, was introduced as a witness for the plaintiff, and testified that he lives in Rockingham, six or seven hundred yards from Bear Lithia Springs; that the most direct foot route from his house to the springs is the railway, up to the crossing; that people are in the habit of using this route, and that witness himself used it; that witness knew the plaintiff's intestate, and that he was at the house of the witness on the morning of the accident; that he (Sites) said he was going to Decatur Bear's, which is further south; that the direct route to Decatur Bear's is by the railroad; that he came on the railroad about 75 yards from witness'house, about 2 miles from Elkton; that it was about 500 yards from the house of witness to where he could see the road straight; that he (plaintiff's intestate) could not be seen all the way from Elkton, —trees would be in the way at the curve; that witness was at home that day, and knew of the accident; that he had heard the whistle for "down brakes;" heard the trainmen say to the section boss that they had struck a man. They went back, running. When witness got there, he saw Sites. He was then dead. He remained there some time And that witness heard no whistle before the one for "down brakes." Such is the testimony in chief of Thomas Naylor, and it signifies but little. However, his evidence on cross-examination was more to the point. He says he had heard the whistle of the train at Elkton; that Sites said, "I believe I will go up to Decatur Bear's;" that witness told him not to go until after the train came down; that Sites said he would not walk on the railroad; that witness wrote on a little tablet, that Sites carried with him, that the train was in Elkton; that Sites kept next to the fence until he came to the crossing; that he went upon the track at the crossing, and that at about 150 yards, or perhaps 200 yards, from the crossing, he was killed, only 2 miles from Elkton; that the train stopped 500 yards from where it struck Sites; that they were trying to stop. They stopped and backed back. It was a heavy train. Was still down grade from Elkton to where Sites was killed. The grade rises towards the north at crossing. He was walking towards the train when struck. He walked from place to place. Was a good workman. Wrote a good hand, and spelled well.

George W. Murray, another witness introduced by the plaintiff, testified that he is a plusterer, and was on the day of the accident working on Bear's Hotel, in East Rockingham; that he was working on the north end of the hotel, about 100 yards from the Shenandoah Valley Bail-road, 2 miles from Elkton; that Whit-lock, witness' son, and a colored man were with him; that the colored man is now dead; that witness saw the accident; that at the time they were working on the hotel, overlooking railroad; that witness' son was looking through a field-glass. "We came up to the window. We saw a man walking pretty fast on the track, with his head down. He was on the far side from us, on the outside or the rails. While looking, we saw a train approaching. Had heard no warning or signal. Was surprised to see it. Were not expecting it. They came right together. It knocked him off. Ran fifty yards, blew 'down brakes, ' and stopped. The train had knocked Sites down the bank. The men came back and looked at him. A material train from Elkton came down, and picked him up, and carried him to Elkton. Was familiar with footpath. A man going from Naylor's would have taken that route. People were in the habit of taking this course. Huve not noticed particular, but have seen several people passing from that route. Was well acquainted with Sites. He was deaf and mute. On one occasion, he called my attention to the fact that he could hear a little. I do not remember his ever having shown that he ever heard a train whistle. He was in a bending position when I saw him, and recognized him as Sites. It was down grade to near the point where he was killed, but grade on a rise where it struck him. He was walking on the outside of the rail, on the endof the ties, when he was...