Tyler v. Sites' Adm'r.1

• Citation: 19 S.E. 174,90 Va. 539
• Parties: TYLER v. SITES' ADM'R.1
• Decision Date: 08 March 1894
• Court: Supreme Court of Virginia

19 S.E. 174

90 Va. 539

TYLER

v.SITES' ADM'R.¹

Supreme Court of Appeals of Virginia.

March 8, 1894.

Opinion Evidence — Action against Railroad Company—Injury to Person on Track.

1. In an action against a railroad company for the death of a deaf mute while walking on the track, a question asked of witness as to whether there was enough in the appearance of deceased to indicate to the engineer that he was not in possession of his faculties is objectionable as calling for an opinion.

2. The fact that deceased was walking on the track with his head and body bent forward did not indicate to the engineer that deceased was not "in possession of his faculties."

Error to circuit court, Rockingham county.

An action of trespass on the case, wherein V. H. Lam, sheriff of Rockingham county, and, as such, administrator of Thomas H. Sites, deceased, was plaintiff, and S. F. Tyler, receiver of the Shenandoah Valley Railroad Company, was defendant. Verdict and judgment for the plaintiff for $1,500. The defendant brings error. Reversed.

Geo. E. Sipe and W. H. Travers, for plaintiff in error.

John E. Roller, O. B. Roller, and C. D. Harrison, for defendant in error.

LEWIS, P. This is a sequel to Tyler v. Sites' Adm'r, 88 Va. 470, 13 S. E. 978. The action was brought to recover damages for the alleged negligent killing of the plaintiff's intestate, a deaf mute, while walking on the ends of the cross-ties on the defendant's track. The facts, as they were then presented by the record, were fully set forth in the opinion of the court delivered by Judge Richardson on the former appeal; and upon those facts it was held that there could be no recovery. The fact, it was said, that the deceased was deaf, made it all the more incumbent upon him to keep a lookout for the train; that to all appearances he was in possession of his faculties; and that the servants of the company had the right to assume, up to the last moment, that he would get out of the way in time to avoid injury. The judgment was accordingly reversed, and the rule declared to be this: that while a railroad company is bound to keep a reasonable lookout for trespassers on its track, and to exercise such care as the circumstances require to avoid injuring them, yet that when an adult person is seen walking on the track, in front of an approaching train, apparently in possession of his faculties, the company-has the right to presume that he will seasonably remove himself from his dangerous po-sition, and that If he fails to do so, and is injured, the fault is his own, and the company will be held blameless, in the absence of willful negligence on its part. In a recent case in the supreme court of North Carolina it was held, in conformity with the rule, that, whether the engineman saw the plaintiff at a distance of 150 yards or 10 feet, he was not at fault in acting on the supposition that he would still get out of the way, and that it was immaterial whether the train was moving fast or slow. High v. Railroad Co., 112 N. C. 385, 17 S. E. 79; citing Mc-Adoo v. Railroad Co., 105 N. C. 140, 11 S. E. 316; Meredith v. Railroad Co., 108 N. C. 616, 13 S. E. 137; Norwood v. Railroad Co., Ill N. C. 236, 16 S. E. 4. Many other authorities might be cited to the same effect, but it is needless to do so, as the rule is well established in this state, and upon sound reason. Railroad Co. v. Harman's Adm'r, 83 Va. 553, 557, 8 S. E. 251.

In the present case the evidence on the second trial, after the case wont back to the circuit court, was substantially the same as on the first, except that the plaintiff sought to prove, on the last trial, by the witnesses George W. Murray and A. J. Whitlock, that the deceased apparently was not in...