Va.-carolina Ry. Co v. Clawson's Adm'r

• Decision Date: 15 September 1910
• Citation: 68 S.E. 1003,111 Va. 313
• Parties: VIRGINIA-CAROLINA RY. CO. v. CLAWSON'S ADM'R.
• Court: Virginia Supreme Court

68 S.E. 1003

111 Va. 313

VIRGINIA-CAROLINA RY. CO.

v.CLAWSON'S ADM'R.

Supreme Court of Appeals of Virginia.

Sept. 15, 1910.

1. Railroads (§ 398^*)—Death of Pedestrian —Negligence—Evidence—Weight.

In an action against a railway company for the death of a boy struck by a locomotive, evidence held to show that the engineer could not have discovered decedent's peril in time to have saved him.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1356-1359; Dec. Dig. § 398.*]

2. Railroads (§ 396*)—Contributory Negligence—Capacity of Children—Burden of Proof.

The burden was on a railway company sued for the death of a boy struck by a locomotive to rebut the legal presumption that he was incapable of contributory negligence.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1342; Dec. Dig. § 396.*]

3. Negligence (§ 85^2-*)—Degree op Care Required of Infants.

Ordinarily less care is required of an infant than of an adult respecting his own personal safety, but his responsibility is always to be measured according to his maturity and capacity as determined by the particular circumstances.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 121-129; Dec. Dig. § 85.*]

4. Railroads (§ 382*)—Contributory Negligence—Infants.

An intelligent boy, 11 years old, who had kept a refreshment stand, had driven a horse, had lived near railway tracks, and was frequently around them, possessed sufficient capacity to appreciate the danger of crossing a track, as affecting the railway company's liability for his death caused by a locomotive striking him.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1297-1304; Dec. Dig. § 382.*}

5. Railroads (§ 382*)—Death of Pedestrian — Proximate Cause — Contributory Negligence.

An 11 year old boy struck by a locomotive while attempting to cross in front of it was guilty of contributory negligence barring recovery for his death, where there was an unobstructed view of the locomotive's approach.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1301; Dec. Dig. § 382.*]

6. Railroads (§ 367*)—Duty of Enginemen to Keep Lookout.

The duty of locomotive enginemen to keep a reasonable lookout for persons on the track does not necessarily require that both the engineer and fireman should be on the lookout at the same time.

[Ed. Note.—For other cases, see Railroads, Cent Dig. §§ 1257, 1258; Dec. Dig. § 367.*]

Error to Circuit Court, Washington County.

Action by Fred Clawson's administrator against the Virginia-Carolina Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

White & Penn and G. E. Penn, Jr., for plaintiff in error.

J. J. Stuart and L. P. Summers, for defendant in error.

WHITTLE, J. In our view of this case the only assignment of error which calls for extended notice is the action of the trial court in overruling the motion of the plaintiff In error, the defendant, below, to set aside the verdict of the jury on the ground that the contributory negligence of the plaintiff's intestate was the proximate cause of the accident.

It is insisted in that connection that if it he conceded that the crossing at which the accident occurred was a public crossing, which imposed upon the railway company the duty of giving signals of the approach of its trains, and that it negligently failed to give such signals by blowing the whistle or ringing the bell, and to keep a reasonable lookout for persons on the crossing, as charged in the declaration, nevertheless the plaintiff's own evidence shows such contributory negligence on the part of his intestate as would bar a recovery.

The essential facts of the case may be summarized as follows: Fred Clawson, plain tiff's intestate, a boy about 12 years and 10 months old, was run over and killed by an engine and tender of the defendant in the daytime, at the extract company's crossing in the town of Damascus. The engine was drifting downgrade at a rate of speed variously estimated at from 8 to 20 miles an hour. At the point of accident the track of the defendant's railway, the Virginia-Carolina, and that of the extract company run parallel with each other, with an intervening space of 25 feet between rails. Clawson was playing with several other boys on the east side of the Virginia-Carolina track near the crossing, when the yard foreman of the extract company, who was shifting a box car on their track, called to them from the top of the car to come over and remove a plank which was lying across the rails. In response to his request two of the boys, Clawson and Tolley, crossed over to the west side of the Virginia-Carolina track, and Clawson removed the obstruction. Tolley was at the crossing and Clawson 15 feet above when they undertook to recross the Virginia-Carolina track. Tolley preceded his companion, and the engine was within a few feet of him when he cleared the eastern rail. Clawson was struck "just as soon as he got on" the track. This, in varying language, is substantially the account of the accident given by eyewitnesses of the plaintiff.

The engineer testified that he saw Tolley on the track at the crossing and Clawson at the side of the track a few feet above, but did not know of his attempt to cross in front of the engine until after the accident. It is clear from all the evidence that it was not possible for the engineer to have discovered Clawson's peril in time to have saved him.

Clawson being under 14 years of age at the time of the accident, the burden rested upon the defendant to rebut the legal presumption that he was incapable of contributory negligence. To meet that burden, the defendant, without contradiction, proved that he was a very intelligent boy; that he had formerly kept a stand in Damascus from which he sold pop and candy, and frequently drove his father's one-horse wagon, hauling wood and hay and other feed. (His father testified that he had a hired driver, and that, if his son ever drove the wagon unattended, it was without his knowledge.) The evidence also showed that the elder Clawson had been...