Wright v. Atl. Coast Line R. Co

• Decision Date: 03 November 1910
• Parties: WRIGHT. v. ATLANTIC COAST LINE R. CO.
• Court: Virginia Supreme Court

110 Va. 670

66 S.E. 848

WRIGHT.

v.ATLANTIC COAST LINE R. CO.

Supreme Court of Appeals of Virginia.

Jan.13, 1910.

Rehearing Denied Jan. 26, 1910.

1. Railroads (§ 386^*)—Injury to Person on Track—Contributory Negligence—Avoiding Defense.

Plaintiff, who, at a flag station, mistaking a freight train for a passenger train, gave the flag signal for stopping a passenger train, and though the train did not stop, as it was under no obligation to do, remained on the track, and was struck, cannot avoid the defense of contributory negligence on the ground that she was attempting to rescue another from imminent danger caused by defendant's negligence, though plaintiffs mother, who had seen her flagging, and so knew a train was coming, was approaching the track on a highway, and the train did not give the crossing signal, or slacken its speed, and plaintiff shouted to her mother, and continued on the track trying by her signals to stop the train; the omission to give the crossing signal not having caused the peril, because the mother knew the train was coming, and no duty resting on persons operating a train to stop it or slacken its speed when seeing a person approaching a crossing along a highway.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1295; Dec. Dig. § 386.*]

2. Railroads (§ 377*)—Injury to Person on Track—Duty to Stop.

Persons in charge of a freight train seeing a person on the track at a flag station giving them the signal for a passenger train to stop may assume the person will get off the track, and so are not negligent in not stopping.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1280; Dec. Dig. § 377.*]

3. Carriers (§ 327*)—Duty of Passenger-Ordinary Care.

Even if one signaling a train at a flag station to stop be considered a passenger, she owes the duty of exercising ordinary care for her safety.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1363-1366; Dec. Dig. § 327.*]

4. Pleading (§ 8*)—Willful and Wanton Negligence.

Willful and wanton negligence is not sufficiently charged by the mere allegation that plaintiff was willfully and wantonly injured, without any statement of facts to show it.

[Ed. Note.—For other cases, see Pleading, Dee. Dig. § 8;* Negligence, Cent. Dig. §§ 182, 184.]

Error from Circuit Court, Nansemond County.

Action by Maude L. Wright against the Atlantic Coast Line Railroad Company. Judgment for defendant. Plaintiff brings error. Affirmed.

Ro. W. Withers, for plaintiff in error.

D.Tucker Brooke, E.E. Holland, and Wm. B. Mcllwaine, for defendant in error.

HARRISON, J. This action was brought by-Maude L. Wright to recover damages for injuries alleged to have been suffered in consequence of the negligence of the defendant railroad company. There was. a demurrer to the plaintiff's declaration and to each of its four counts, which was sustained by the circuit court, and thereupon this writ of error was awarded.

In the view we take of the case, it is only necessary to consider the ground of demurrer which rests upon the contention that the plaintiff was guilty of such contributory negligence as to preclude all right of recovery under her declaration.

Taking the declaration as a whole, its salient allegations are that on the day of the accident the plaintiff, a young, strong, active woman, and her mother, went to "Dean's, " a flag station on the line of defendant's road, to take passage for Suffolk, another station on the line of the same road; that at Dean's no regular resident agent was employed, those desiring to board trains being invited and required to stand on or near the track and wave some object across the track as a signal to the engineer to stop the train; that the station was reached within one hour before the arrival of the expected train, and while her mother was some distance away, and on the opposite side of the track from the station, the plaintiff saw a train coming, which she took to be the passenger train she expected to take, but which turned out afterwards to be a fast freight train; that she saw this train when it was 500 yards off, and when it could have been easily stopped before reaching the station, and that, as soon as she saw it, she stepped upon the track and commenced in the usual and customary way, signaling to the defendant's employes to stop the train by waving across the track a large bag or box, which was seen by those in charge of the train in ample time to stop before reaching the station; that, while thus standing and signaling the train, she saw her mother walking along the public highway toward the railroad crossing, 20 yards east of the station, in the unobstructed view of the employes on the approaching train, and at such an angle that her mother's back was toward the engine, and that unless her mother stopped or turned aside, or unless the approaching engine was stopped or its speed slack-ened, her mother would reach the track at the public crossing just in time to be struck and killed, all of which was plainly seen by the defendant's servants, who carelessly and negligently failed to sound the whistle for the public crossing as required by law, and that thereupon, in order to save her mother from the danger in which the defendant's negligence had placed her, and from the certain death then impending, she shouted to her mother to stop, which, because of the noise and confusion her mother did not hear, or if she heard did not heed; that at the same time the plaintiff persistently stood on the track in full and unobstructed view of the employes who were operating the train, and while there was ample time to stop or slacken the speed of the engine, plaintiff believing that the only way to save her mother was to keep herself in an obviously dangerous place, and thus stop the oncoming train; that under these circumstances the defendant's employes knew or ought to have known that she expected them to stop the train or to impede its speed, and that she would not get off the track until one or the other had been done; that the defendant, not regarding its duty, but grossly violating the same, wrongfully and negligently failed and refused to stop its train or slacken its speed, or to indicate by short blasts of the whistle, as is the well-known custom, that the train would not stop, by reason of which negligence the engine struck and killed the mother, and that the plaintiff was either struck by the lifeless body of her mother being hurled with great violence against her, or the plaintiff, not having gotten quite out of harm's way, was struck by the overhanging parts of the engine, thereby causing the injuries complained of.

The first, second, and third counts of the declaration allege that the plaintiff bore to the...