Wash. v. Ry. Co
| Decision Date | 12 January 1911 |
| Citation | 69 S.E. 1035,111 Va. 785 |
| Court | Virginia Supreme Court |
| Parties | WASHINGTON, A. & MT. V . RY. CO. v. VAUGHAN. |
A carrier owes to actual and constructive passengers a higher degree of care than to travelers at highway crossings.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1085; Dec. Dig. § 280.*]
An alighting passenger is entitled to reasonable protection against accident in passing from the station premises, but must use proper care to avoid danger; the degree required depending upon the particular circumstances.
[Ed. Note.—For other eases, see Carriers, Cent. Dig. §§ 1385-1397; Dec. Dig. § 333.*]
That while crossing double tracks to a station shed in the nighttime an alighting electric railway passenger was struck by a train running in the opposite direction without headlight displayed or giving warning does not show contributory negligence as a matter of law, though he failed to look and listen after alighting from his train.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1402; Dec. Dig. § 347.*]
In an action by an alighting electric railway passenger struck in the nighttime by an unlighted train running in the opposite direction, it was not error to receive testimony on the commonly known fact that trolley poles frequently become detached, and that lights in cars are thereby extinguished.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1295-1306; Dec. Dig. § 317.*]
Prior or subsequent existence of a thing is some indication of its probable existence at a given time; the degree of probability arising from existence at a subsequent time depending upon the likelihood of some circumstance intervening, but the admission of such evidence is largely discretionary with trial courts.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 87; Dec. Dig. § 67.*]
In an action by an alighting passenger for injury to one struck in the nighttime by an elec-trie ear, involving an issue whether the car was lighted, it was not an abuse of discretion to exclude testimony showing that the lights were burning about 15 minutes after the accident.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1295-1306; Dec. Dig. § 317.2-*]
The rule that the burden is on defendant to show contributory negligence is subject to the qualification that the showing on plaintiff's case is available to defendant.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 232; Dec. Dig. § 122.*]
An instruction that the burden was on defendant to show contributory negligence unless the "evidence of plaintiff himself showed it was erroneous as tending to exclude consideration of testimony of plaintiff's witnesses other than himself.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 355; Dec. Dig. § 138.*]
That the way across railway tracks used by an alighting passenger in going to the station was a public highway did not affect the degree of care owing him by the carrier.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1236, 1237; Dec. Dig. § 303.*]
An instruction as to the duty of a railway company to a traveler on a highway, while erroneously given in an action for injury to an alighting passenger, was harmless to the company, since there is a higher duty to passengers than to travelers.
It was not error to instruct that electric railway companies must use the greatest possible care and diligence for their passengers' safety.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1087; Dec. Dig. § 280.*]
An instruction making defendant liable if he was negligent unless plaintiff was guilty of contributory negligence is erroneous as ignoring the necessity that the negligence proximately caused the injury.
[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 378-381; Dec. Dig. § 140.*]
Error to Circuit Court, Alexandria County.
Action by Wyatt Vaughan against the Washington, Alexandria & Mt. Vernon Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.
Moore, Barbour & Keith and Jas. R. & H. B. Caton, for plaintiff in error.
Lewis H. Machen and R. C. L. Moncure, for defendant in error.
The first assignment of error is to the action of the court in overruling a demurrer to the amended declaration and each count thereof.
This action was brought to recover dam ages for personal injuries suffered by the plaintiff whilst a passenger on the defendant's line of road—an electric railway, which it operated between Washington city and the city of Alexandria. Each of the three counts in the amended declaration makes averments which show that the plaintiff was a passenger for hire on one of the defendant's cars; that when be reached his destination at Addison, one of the defendant's stations, the train or car upon which he was traveling was stopped, and he stepped on the opposite side of the road from the station shed; that, while crossing double tracks of the defendant going towards that shed in the nighttime, another train of the defendant, running on the other track, in the opposite direction, with no headlight displayed or whistle blown or other warning given, struck him, causing the injuries complained of.
As we understand the petition for the writ of error, the principal objection made to the sufficiency of the declaration is that the facts averred in each count show that the plaintiff was guilty of contributory negligence in going from the point where he left the defendant's car across its tracks toward its station building, in the absence of an averment that he looked and listened for an approaching train, before going upon the tracks upon which he was injured.
A railroad company owes to one occupying the relation of a passenger, actually or constructively, a different and higher degree of care than it does to a traveler about to cross its tracks at a highway. While a passenger has the right to pass from the place where the car is stopped for him to alight to the station building or off its premises, and the railway company should furnish him reasonable and adequate protection against accident in the enjoyment of this privilege, the passenger is bound to exercise proper care and caution in avoiding danger. What degree of care and caution he is to exercise in a particular case must be governed by the danger to be encountered and the circumstances attending its exercise. Railway Co. v. Lowell, 151 U. S. 209, 14 Sup. Ct. 281, 38 L. Ed. 131; Warner v. B. & O. R. Co., 168 U. S. 339, 18 Sup. Ct. 68, 42 L. Ed. 491; Terry v. Jewett, 78 N. Y. 338; 6 Cyc. 607-8.
It is said in 2 Shear. &. Red. on Neg. § 525, that:
The facts averred in the declaration do not show that the plaintiff was guilty of contributory negligence as a matter of law, even if he failed to look and listen for approaching trains before he crossed the track of the defendant company in leaving its premises after alighting from its train.
Without discussing the other grounds of demurrer in detail, it is sufficient to say that each count states a good cause of action, and that the demurrer was properly overruled.
The second error assigned is as to the evidence of witness Rucker, set out in bill of exceptions No. 1. As the question involved in that assignment of error is not likely to arise upon another trial, it is unnecessary to pass upon it.
There was no error in permitting the witness Sorrell to testify that trolley poles frequently become detached from the wire, and, when they do that, there is no light inside the car and no electric headlight. That is a matter of common knowledge, and could not have prejudiced the defendant company.
The third error assigned is based upon a mistake of fact. It appears from bill of exceptions No. 3 that the witness Sorrell was permitted to state such facts as would explain why the defendant company did not obtain the name of the only passenger on the train which caused the plaintiff's injury and did not produce him as a witness.
The fifth assignment of error is based upon the refusal of the court to permit two witnesses to testify under the circumstances disclosed by bill of exceptions No. 4, which is as follows:
" * * * After the plaintiff had introduced evidence tending to show that at the time of the accident the car which collided with the plaintiff and injured him was lit by neither electric nor oil headlight and that the car was absolutely dark, and after the conductor and motorman had...
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