Virginia Central R. R. Co. v. Sanger

• Decision Date: 25 August 1859
• Parties: VA. CENTRAL R. R. CO. v. SANGER.
• Court: Virginia Supreme Court

56 Va. 230

VA. CENTRAL R. R. CO. v. SANGER.

Supreme Court of Appeals of Virginia.

August 25, 1859

1. Rail road companies conveying passengers, combining in themselves the ownership as well of the road as of the cars and locomotives, they are bound to the most exact care and diligence, not only in the management of the trains and cars but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of the passengers.

2. The duty of a rail road company to employ the utmost care and diligence in guarding their road against obstructions on the track is clearly embraced within its warranty to carry their passengers safely, so far as human care and foresight can go.

3. If a rail road company, whilst using its track for the carriage of passengers, engages in a work to be done on its road and in the immediate proximity of its track, negligence in the performance of which would, in the estimation and opinion of cautious persons, involve the hazard of obstructions to the passage of its cars, and an accident to a passenger is caused by an obstruction arising from negligence in the performance of the work; it is no defence to show merely that they had placed the work in the hands of a contractor, and that the obstruction was caused by the carelessness of one of his employees.

4. Contractors employed by a rail road company to deliver stone on the road and prepare it for ballasting the track (the ballasting not being necessary to the security, but being intended for the preservation of the track), place the stone in ridges so near the rail that it is struck by the step of the baggage car, or the ridge is disturbed and a stone rolled down by the hub of one of the cars, or is rolled down by the jarring of the train as it passes near the ridge, or it is loosed from its place and rolled down by the haste of one of the hands employed by the contractors in getting off the ridge to avoid the train, and the cars run against it, and are thrown off the track, whereby a passenger is injured; it is for the jury to enquire whether there was not danger in the work, arising from the mode and manner in which it was done; whether the company did not know, or by the exercise of the proper diligence might not have ascertained, the existence of such danger; and whether they had used due care and foresight in guarding against it; and if they have failed in this, the company is responsible to the passenger for the injury he has sustained.

5. An instruction which is susceptible of two constructions, one of which is erroneous, and which may therefore mislead the jury should not be given.

This was an action on the case in the Circuit court of Augusta county, brought by Jacob Sanger against the Virginia Central Rail Road Company, to recover damages for an injury which he sustained whilst being carried as a passenger on the defendant's road. On the trial the defendant asked for six instructions to the jury; the first four of which were given, the fifth was refused, and the sixth was given with a slight addition. And to the refusal of the court to give the fifth and sixth instructions as asked for, and the giving the sixth with the addition thereto, the defendant excepted. They are stated by Judge DANIEL, in his opinion, with the evidence on which they are based. The jury found a verdict in favor of the plaintiff for six thousand dollars; on which the court rendered a judgment. And thereupon the defendant obtained a supersedeas to this court.

Michie and Stuart, for the appellant.

Baldwin and Imboden, for the appellee.

DANIEL J.

The only questions which we have to consider, are those arising out of the ruling of the Circuit court in respect to the fifth and sixth instructions asked for by the plaintiff in error on the trial.

By the fifth instruction the court was asked to say to the jury, that if they believed from the evidence, that the injury received by the defendant in error was caused by the cars being thrown off the track by a large rock suddenly rolled down upon the track by the servants of Brown & Crickhard, contractors for the performance of work which did not necessarily or properly concern the running of the road, nor connect itself with or affect the track or the carrying of passengers thereon safely, and by no other carelessness; and that the rolling down of the said rock as aforesaid, could not have been foreseen nor provided against by the conductors of the cars, then, although the contract of the company with Brown & Crickhard required that their work should be done according to the requirements of the principal and other engineers of the company, and that Brown & Crickhard should carry out their directions, & c.; yet those provisions in the said contract did not make the employees of Brown & Crickhard servants of the company; and the jury should find for the company.

The sixth instruction asserts the proposition, that although it be true that a common carrier is not at liberty to depute another party to perform any part of his duty in reference to the transportation of passengers, and cannot rely on such a deputation to relieve him from responsibility; yet in a matter not relating to the duty of transportation of passengers, but collateral thereto, and not necessarily affecting the duty of the company as carriers, they stood on the same footing with other persons, and might rely on the default of their subcontractor to the same extent as any other party could do.

The court refused to give the fifth instruction, and gave no other in lieu of it. The court also refused to give the sixth instruction as asked, but in lieu of it, instructed the jury, that although it be true that a common carrier is not at liberty to depute another party to perform any part of his duty in reference to the transportation of passengers, and cannot rely on such a deputation to relieve him from responsibility; yet in a matter not relating to the duty of transportation of passengers, nor connected with the safety of the road, but collateral thereto, and not necessarily affecting their duty as carriers, the company stood on the same footing with other persons, and might rely on the default of their subcontractor to the same extent that any other party could do. The modification made by the court in the instruction, as asked, consisting in the interpolation of the words which I have italicised.

It appears from the certificate of the facts, that Brown & Crickhard were the contractors for the construction of the nineteenth section of the road (the section on which the injury was received); and that their contract included the delivery upon the line of the road, and preparing for the use of the track layers, the stone necessary for ballasting the road; that some month or two before the happening of the act complained of, it became desirable to lay the track upon the nineteenth section, and to use it for the passage of the cars; that Brown & Crickhard were not then ready with the stone for ballasting, and that as ballasting was designed merely to secure the permanency and durability of the superstructure, and was not deemed by the company essential to the present safety of the road, the engineer required the track to be laid without the stone ballasting: and the road was thus brought into use without the ballasting. Brown & Crickhard were required to go on and deliver and prepare the stone for ballasting; and were instructed to place it on the line of the road, outside of the track, in such a position that it could be either used for ballasting or conveniently placed upon cars to be transported elsewhere on the line; though they were instructed not to place it upon the track, or on or between the ties.

It further appears, that Brown & Crickhard were engaged with a force of fifteen or twenty hands, in delivering and preparing this ballasting, and that the mode of doing it was to place unbroken stone along the line of the road outside of the track, and then to break and heap it up in ridges of convenient size and shape to be measured and received by the engineers. These hands were engaged at this work at the time the train came up on the day of the injury, and some of them appeared to have been sitting astride the stone ridges, and to have just left their places to avoid...